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[2010] ZAECPEHC 85
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W.F.J.V.W and Others v S (CA&R 15/2010) [2010] ZAECPEHC 85 (23 July 2010)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
OF
INTEREST
CASE
NO. CA & R 15/2010
Date
of Application : 4 June 2010
Date
of judgment : 23 July 2010
In
the matter between
W[…]
F[…] J[…] V[…] W[…]
First
Appellant
C[…]
M[…] V[…] W[…]
Second
Appellant
L[…]
A[…] S[…] M[…] V[…] W[…]
Third
Appellant
and
THE
STATE
Respondent
JUDGMENT
HARTLE,
A J:
[1]
This is an appeal against the refusal by a magistrate in Port
Elizabeth on 26 January 2010 to
admit the Appellants to bail.
[2]
The appeal was only noted on 20 April 2010 but the Appellants sought
leave to condone the late
filing thereof and the prosecution of the
appeal. Since there was no opposition to the application, I
granted the relief
sought.
[3]
The main ground for the appeal was the contention that the magistrate
had misdirected himself
in finding that the Appellants were charged
with a Schedule 6 offence which, so it was contended, resulted in a
misapplication
of the onus of proof. Other grounds related to
the manner in which the magistrate applied the evidence, or failed to
apply
it, in relation to the applicable legal principles.
[4]
With regard to the Third Appellant, it was contended that the
magistrate had erred in failing
to find, on the State’s own
case, that she was not involved in the commission of the alleged
offences and that there was
not “
a shred of evidence
”
implicating her in this regard. Ms
Loots
, who appeared
for the state, acknowledged as much during argument. As a
result of her concession in this regard, I instantly
ruled in the
Third Appellant’s favour that her appeal succeeds and that she
be released on her own recognizance’s forthwith.
Judgment
was reserved in respect of the First and Second Appellants.
[5]
The First and Second Appellants are married to each other. The
Third Appellant is the older
sister of the Second Appellant, and the
ex-wife of the First Appellant.
[6]
The charges preferred against the Appellants
[1]
,
as reflected on the face of the charge sheet are the following:
“
1)
Sexual exploitation of children;
2)
sexual grooming of children;
3)
exposure of pornography to children;
4)
causing children to witness sexual acts
”
.
[7]
The annexure to the charge sheet repeats what is stated on the face
of the J15, without any detail
as to dates, places, events or
persons. There is also an absence of any reference to the
applicable legislation under which
the Appellants were charged.
[8]
The First and Second Appellants’ formal bail application
proceeded on 7 January 2010.
At the outset thereof Mr
Roelofse,
who first appeared on their behalf, noted that there was a difference
of opinion between him and the prosecutor concerning whether
the
charges resorted under Schedule 5 or 6 to the
Criminal Procedure Act,
No. 51 of 1977
. He thought that Schedule 5 was applicable; the
prosecutor Schedule 6
[2]
.
His initial submissions in this regard were recorded as follows:
“
Die
rede hoekom ek so sê, Skedule 6 verwys na verkragting en Du
Toit … praat hulle van “rape”. Hulle
sê
hierso waar dit verkragting is waar die “victim”:
“
Where
the victim is a girl under the age of sixteen, where she is
physically a disabled woman or mentally ill woman.”
Nou Edelagbare u sal merk
met die klagtes en die Staat kan dit bevestig, wat gestel word, is
dit inderdaad so dat hulle beweer dat
daar wel dogters ter sprake is
wat onder die ouderdom van sestien is, maar dat daar op geen stadium
enigiets plaasgevind het sonder
toestemming nie en van daar ‘n
klagte van statutêre verkragting gestel is. Dan soos
uself weet is statutêre
verkragting net nie verkragting nie.
Die wetgewer maak ‘n onderskeid tussen verkragting en statutêre
verkragting
en indien die wetgewer statutêre verkragting as ‘n
Skedule 6 klagte wou stel, sou hy dit pertinent genoem het onder
Skedule 6 wat inderdaad nie so gedoen is nie. Alles word
behandel onder die hoof van verkragting en nêrens word daar
melding gemaak deur die wetgewer dat statutêre verkragting ook
daaronder resorteer nie.”
[9]
He pointed to the difference in degree of evidential burden which the
Appellants would have to
bear, depending on whether they were charged
with an offence referred to in Schedule 5 or Schedule 6, but
accepted, in either case,
that they bore the onus
[3]
.
The prosecutor contended that Schedule 6 was applicable because the
complainants, who were under the age of 16 years,
could not have
lawfully given permission.
[10]
The magistrate promptly ruled that Schedule 6 was of application.
His reasons were stated as follows:
“
Die
Hof moet nou hier beslis of hierdie ‘n Skedule 5 of ‘n
Skedule 6 misdryf is. Die bewyslas tussen die twee
verskil.
Volgens die Hof se inligting wat hier aan die Hof meegedeel is, is
dit meisiekinders tussen die ouderdome van tien
and vyftien
betrokke… ‘n dogtertjie onder die ouderdom van
twaalf … word dit geag dat sy nie toestemming
tot
geslagsgemeenskap kan gee nie as sy onder die ouderdom van twaalf
jaar is. Derhalwe in hierdie geval beslis die Hof dus
dan
hierdie as ‘n Skedule 6 misdryf.”
(sic)
[11]
This ruling set the tone for the premise that both Appellants should
satisfy the court that exceptional circumstances
existed which in the
interests of justice permitted their release in terms of
section
60(11)(a)
of the
Criminal Procedure Act.
[12
]
Despite the magistrate’s ruling on onus, the prosecutor
commenced the enquiry by tendering into evidence
an affidavit deposed
to by Captain
Michael Coenraad Grobler
, the investigating
officer in the matter. In addition, she made certain
submissions in support of the State’s opposition
to the
application for bail. These were that: the investigation was
far from complete; there was a possibility that the Appellants
would
interfere with the investigation, they might possibly commit suicide
and, in addition, were flight risks. Because
of the
children’s ages, their lack of parental supervision and poor
economic circumstances, she contended that they were
particularly
vulnerable to influence from the Appellants. The State’s
case was thereupon closed.
[13]
Except for lamenting at some stage later during the proceedings that
he would not be afforded an opportunity
to cross examine Captain
Grobler
,
Mr
Roelofse
offered no demur to the introduction of the latter’s evidence
by way of affidavit
[4]
.
[14]
In his lengthy affidavit, deposed to on 6 January 2010, Captain
Grobler
fleshed out the charges against the First and Second
Appellants in somewhat more detail than appears on the face of the
J15 and
the annexure thereto:
“…
both
accused 1 and accused 2
[5]
have
been charged and are going to answer to the following charges in
terms of the Sexual Offences and related matters amendment
Act
32/2007
[6]
:
3.1
Section 8
– Compelling or causing persons 18 years or older to
witness a sexual offence, sexual acts or self masturbation.
3.2
Section 9
– Exposure or display of or causing exposure or
display of genital organs, anus or female breast to persons 18 years
or older.
3.3
Section 10
– Exposure of or display or causing exposure or
display of child pornography or pornography to persons 18 years or
older.
3.4
Section 15 – Act of consensual sexual penetration with certain
children (statutory
rape).
3.5
Section 16 – Acts of consensual sexual violation with certain
children (statutory
sexual assault).
3.6
Section 17 – Sexual exploitation of children.
3.7
Section 18 – Sexual grooming of children.
3.8
Section 19 – Exposure or display of or causing exposure or
display of child pornography
or pornography to children.
3.9
Section 21 – Compelling or causing children to witness sexual
offences, sexual acts
or self masturbation.
3.10
Section 22 – Exposure or display of or causing exposure or
display of genital organs, anus or
female breasts to children.”
[15]
From
Grobler’s
affidavit, it appears that the investigation against the Appellants
commenced after a 13 year old girl, who worked as a child prostitute
in the Draaifontein area, Greenbushes, Port Elizabeth, was reported
missing by her mother. The child was last seen alighting
a
white motorvehicle. Numerous prostitutes and street children from the
area were interviewed. It was established that the
occupants of
the vehicle were well known to the street children as a married
couple, “
J[…]
”
and “
C[…]
”
[7]
who regularly collected street children from the area. The
children were then taken to the couples’ house where they
were
“
used
for sexual purposes
”,
for which they were paid “
between
R100,00 – R150,00
”.
[16]
Captain
Grobler
alleged that thirteen witnesses were traced
and interviewed by himself and senior members of the Police Service.
Statements
were obtained from all of them concerning their
relationship with the First and Second Appellants. From
information gleaned
from these witnesses he was of the view that
numerous transgressions of the Sexual Offences Amendment Act had
occurred and “
could still be occurring
”. He
was of the opinion that they were “
starting an investigation
regarding an alleged case of pedophilia
”. At the time
of deposing to his affidavit, 130 charges (“
10 charges per
witness
”) were to be preferred against the Appellants.
[17]
According to the witnesses’ sworn statements, the Appellants
had been “
picking
up
”
children for a number of years. There was a preference for
young girls (seemingly pre-pubescent) between the ages
of ten and
fifteen years. The girls - who
Grobler
himself refers to as “
prostitutes
”
- willingly accompanied the Appellants as they were paid and plied
with alcohol and food. At the Appellants’
home they were
shown pornographic movies; watched the couple engage in sexual acts
with each other or third persons; and themselves
engaged in oral sex
or other sexual acts with one or other of the Appellants. The
First Appellant also had sex with some
of the witnesses, or attempted
to penetrate them. One girl, aged 12, complained that the day
after such an attempt, she hurt
and her vagina burned. The
First Appellant had two favourite “
minor
girls
”
[8]
who regularly called at the couples’ home and with whom, on
occasion he had sex twice a day.
[18]
The Second Appellant was allegedly complicit in these sexual acts.
The witnesses alleged that she watched
(sometimes with some of the
minors) while the First Appellant had sex with them. On an
occasion she had sex with a “
black male
” while the
First Appellant and a minor girl watched. The couple apparently
also used to pick up “
young boys
” for her
pleasure, but this practice was stopped because the boys could not be
trusted not to steal. According to one
of the witnesses, the
Second Appellant further told her what she should do in order to
gratify the First Appellant.
[19]
Grobler
concluded from the witness statements that both
Appellants “…
were possibly pedophiles and that the
street children (
had)
been exploited sexually for a long
time
”. One of the witnesses, a 25 year old woman,
indicated that she was first picked up by the couple ten years
previously
when she was only 15 years of age. Evidently this
practice has continued over a period of ten years.
[20]
The Appellants were arrested on 23 December 2009 on charges under the
Sexual Offences Amendment Act after
discussion with a senior
prosecutor. A search warrant was also authorized, pursuant to
which the police confiscated a computer
and thirteen DVDs “
allegedly
containing pornography
” at the First Appellant’s
son’s home to which the former had directed the police.
The inside of the Appellants’
home was consistent with
descriptions given by the witnesses, and items of clothing belonging
to a small female person were also
confiscated there.
[21]
The Appellants were questioned regarding the allegations against
them. They furnished certain information
to the police, the
most significant being the following
[9]
:
Second
Appellant
:
·
She had a difficult childhood which
included time in a children’s home.
·
She became involved in a three way sexual
relationship with the First Appellant and her sister (the Third
Appellant) when she was
eleven years old and had had sex with the
First Appellant from that age.
·
She confirmed that the “
three
way relationship
” was continuing.
·
She had known the First Appellant all her
life, was extremely loyal to him and loved him.
·
She was aware of the First Appellant’s
“
obsession
with minor children
”
and accompanied him to pick up children for sexual purposes at their
home.
·
She was aware that the First Appellant had
sex with the minor children. She never partook in the sex acts,
however, although
she “
observed
”
the First Appellant having sex with them, “…
both
oral and normal sex
”. She
claims to have waited in the other room most of the time.
·
Pornography was shown to the children.
·
She
knew that what J[…] did to the children was wrong
[10]
.
First
Appellant
:
·
He admitted that he used minor children
“
for sexual purposes
”.
·
He had a “
problem
”,
but could control it. In the past he had lost control because
the children “
flirt
”
with him.
·
He knows the children ages, because he asks
them.
·
He gives the children alcohol to drink.
·
The children “
masturbate
him
” and give him “
blow
jobs
” (This would not happen, he
says, if they were not “
like they
are
”).
·
He denied having sex with them.
·
He uses both a blue Uno and white Almera to
pick up the children.
·
He wanted to stop, “
had
stopped
” and was “
definitely
going to stop in the new year
”.
·
He knew that this conduct was wrong, but
the children “
offer it
”
and “
play with his mind
”.
He had said no, but they keep coming back.
·
He has never forced any person, nor hurt
them.
·
He has never “
raped
”
anyone, or hurt them.
·
With regard to the problem which he “
can
control
”, he can’t do so if
the children “
keep pulling him
into it
”.
·
He needs “
help
”.
·
He
denied that the Second Appellant ever partook in or observed the
sexual acts, but she knew of his sexual obsession with children
and
that he had sex with them regularly
[11]
.
[22]
Grobler
alleges that the Second Appellant was herself groomed by the First
Appellant from an early age and was susceptible to his influence.
His control over her was not only emotional, but also economic as he
created the impression that should she leave, she would not
be able
to survive and have nowhere to go
[12]
.
[23]
Grobler
concluded that bail should not be allowed for the
Appellants for the following reasons:
“
21.1
that the investigation is far from complete and that there is the
possibility that the accused, if either should
be released, will not
only influence the witnesses already traced and whom are known to
them but might cause future witnesses to
become unavailable to the
SAPS.
21.2
that the crimes are of a most serious nature and that if convicted
both the accused can expect long
prison sentences. They are
both a flight risk as J[…] has money available which he
obtained when he was retrenched,
especially, if the enormity of this
investigation and the other possible linkages are taken into account.
21.3
Only the accused know what dark secrets are going to be exposed here
and in Durban
[13]
. The
possibility of suicide by one or both can not be ignored. They
are in a hopeless situation and they clearly understand
that their
illegal actions for more than 10 years in which the lives of numerous
under age children have been destroyed, has now
ended. They are
aware that the SAPS will do it’s utmost to trace and find all
the victims of their perversion.
Both these accused are in my
humble opinion unstable and the weight of their illegal actions might
be to hard to bear. It
is my submission that they should not be
afforded the opportunity to cheat justice by taking the easy way out.
21.4
the investigation into child pornography or pornography and a
possible pedophile ring is on going and
should the accused be
released it could cause evidence and witnesses to be lost. The
details of said investigation can unfortunately
not be revealed
because of the sensitivity there off.
21.4
The possible connection between the accused and child traffickers are
being investigated. The
details of said investigation can
unfortunately not be revealed because of the sensitivity there off.
21.5
the crimes, which we intend to prove beyond a doubt, are viewed as
very serious by the Community as
is clearly illustrated in the
media. The Community rightly expects the Justice cluster to
take a stern view and to set an
example in these matters (
sic
).”
[24]
The First Appellant thereupon adduced oral testimony in which he
outlined his personal circumstances. He
is 53 years of age, and
has been married to the Second Appellant for 26 years
[14]
.
They have a son aged seven years. He has two older children
aged 18 and 31 years, both born to the Third Appellant.
The 18
year old child lives with him and the Second Appellant, and is
supported by him. He was retrenched six months before
the bail
hearing from Spoornet with whom he enjoyed 36 years’ of
uninterrupted service. This was his first job after
school.
He has lived in Port Elizabeth for approximately 20 years and prior
thereto resided in Durban for 17 years.
Two years before his
retrenchment already he commenced a private business plying his trade
as an electrical motor rewinder, which
enterprise he has continued to
operate from home since his retrenchment. The business
generates an average income of R1 000,00
per week. He received
a substantial pension payout, most of which he has invested. He
supports his family from the
interest.
[25]
He does not have a passport neither has he ever before left the
country.
[26]
He and the Second Appellant live at, and own, the property at 3[…]
D[…] Road in A[…]
Park, Port Elizabeth. It is
unencumbered and was acquired a few years ago. Before this the
Appellants owned a property
in Newton Park.
[27]
He denied having any previous convictions but referred to two prior
occasions on which he was arrested, but
freed. One of the
charges related to domestic violence, but this was withdrawn at
court. He was also charged with drunk
driving. This
charge was ultimately thrown out, however, because the content of
alcohol in his blood was below the legal
limit. He paid bail in
an amount of R200,00 in respect of the latter charge and met the
conditions thereof. He has
never given false information and
co-operated with the law before.
[28]
There are no pending cases against him.
[29]
With regard to the charges preferred against him, he indicated that
he would plead not guilty, but elected
not to testify regarding the
merits thereof. He denied being a pedophile or that he was
complicit with child traffickers.
He would deny any allegations
of child trafficking if such charges were to come.
[30]
He gave the usual undertakings not to jeopardize the bail system and
to meet any conditions of bail.
He was willing to do so despite
the “
klomp klagtes teen (
hom)” and his awareness
that, if convicted, he would face a long term of imprisonment.
He would even accept if was required,
for example, to remain under
“
house arrest
” pending the finalization of the
matter. He could afford bail in the sum of R5 000,00.
[31]
Under cross examination he conceded that he may have been found
guilty of an additional charge of the negligent
loss of a firearm in
respect of which a suspended sentence was imposed. Whilst being
aware of the charge, he did not recall
a conviction. He was
under the impression that the case had been withdrawn against him
because his weapon was stolen from
him. It was also put to him
that he had a previous conviction for reckless/negligent driving, but
he clarified that this
was the same matter previously referred to by
him as the drunk driving case.
[32]
A hint of how he would deal with the charges upon trial emerged when
the question of his possible contact
with state witnesses was
explored. He stated that contact was initiated entirely by the
children and was limited to offering
them work to help his wife clean
the house or be a playmate to his 7 year old son. He denied
that he and the Second Appellant
used them for sexual purposes.
He also denied that their ages were between 10 and 15. He
insisted that he would establish
that children invited to his home
would be at least 16 years old as he understood that this was the
legal age for them to work.
He denied ever having gone to fetch
children as alleged. He and the Second Appellant were always
friendly and kind to the
children and would give them food to eat.
They discouraged such contact, however, after a bicycle and cell
phones were stolen
from their home.
[33]
He acknowledged that he visited the Greenbushes area where it is
alleged he picked up children, but this
was strictly to meet up with
a colleague who was doing motor re-winding work for him. He
knows one person by the name of
Joanna from this area with whom he
and the Second Appellant are acquainted. She is 25 years old.
[34]
It is not clear if this was due to an oversight on his part, but the
First Appellant failed, in his evidence
in chief, to pertinently
refute any of the allegations in
Grobler’s
affidavit
particularly in relation to his alleged “
weakness
”
for or obsession with pre-pubescent girls. He further failed to
deny that he had furnished the relevant personal information
contained therein. But for the broad and general denial
elicited by the State during cross-examination, these averments in
Grobler’s
affidavit may have stood uncontroverted.
[35]
The Second Appellant did not testify herself, electing rather to hand
in an affidavit in which she set out
her personal circumstances.
Leaving aside those factors which are common to both appellants, she
is 44 years of age and is
unemployed. She too has no passport
and has never before left the country. Neither she nor the
First Appellant have
any connections outside of South Africa.
She has no previous convictions, no outstanding cases and has never
been arrested
before.
[36]
She denies ever having committed an offence. She states that
the information furnished by her to the
police - I assume that which
is referred to in
Grobler’s
affidavit - was extracted as
a result of intimidation and under threat that her child would be
permanently taken from her.
[37]
She undertook to meet the usual bail conditions and indicated that
she could afford to put up an amount of
R5 000,00 in this regard.
[38]
The Appellants thereupon closed their case. Closing submissions
were made and the matter was postponed
to 15 January 2010 for
judgment.
[39]
On the latter date the Third Appellant was added as an accused,
having been arrested the day before.
The State opposed bail for
her and the matter was postponed for a formal bail application.
The State also applied, on this
date, to re-open its case on the
basis of “
new
” information which had come to
light. In this regard a further affidavit of Captain
Grobler
was admitted into evidence with the Appellants’ consent, but
without admitting the contents thereof. Principally its
purpose, so it was explained by the prosecutor, was to demonstrate
that whereas before there had been no allegations of violence
against
the Second Appellant, this was now a factor in the consideration of
bail.
[40]
According to
Grobler
, one of the witnesses claimed that the
First Appellant had forcibly penetrated her when she was 13 years
old.
Grobler
added that the number of victims stood at 17 with 10
charges per victim, the Appellants facing 40 additional charges in
terms of
the Sexual Offences Amendment Act.
[41]
Mr
Roelofse
elected not to lead further evidence concerning
the new allegations in
Grobler’s
affidavit, but
informally recorded the Appellants’ denial thereof.
[42]
On 21 January 2010 the State once again sought permission to re-open
its case with a view to introducing
further evidence, this ostensibly
pertaining to the Second Appellant’s attempt to evade trial or
to undermine the proper
functioning of the criminal justice system.
Yet a further affidavit of
Grobler
was tendered into
evidence. The gist of the last affidavit is that, following an
interview with a witness at the prison where
the First Appellant was
being incarcerated, the First Appellant had plotted to commit
suicide. The Third Appellant allegedly
smuggled ten sleeping
tablets and poisonous lice shampoo into the prison to enable him to
achieve this end. He, in turn,
had given her “
suicide
letters
” and instructions to be opened once informed of his
death. The letters which were placed in a safe at the First
Appellant’s
home, were confiscated by the police. In
Grobler’s
opinion, the letters - which were also
introduced into evidence - were indeed “
suicide notes
”.
[43]
One of the letters instructed:
“
BEWAAR
IN KLUIS TOT EK IETS OORKOM…”
In
it the First Appellant says twice
: “outhou
ek neem my lewe vir (
jou/julle
)”.
He also writes, to the Second Appellant:
“
ONTHOU EK GAAN DOOD WEES JY KAN
ENIGE IETS SÊ OM DAAR UIT TE KOM …”
[44]
Arising from this evidence, the First Appellant was re-called to
testify. He denied emphatically that
he had any contemplation
whatsoever to take his own life and explained that the shampoo was
for lice treatment and the pills in
order to enable him to sleep.
The letters were intended to be instructions to the family in respect
of how to manage his
affairs upon his demise. He explained that
prison was a dangerous place, prompting him to arrange his affairs
against the
contingency of his untimely death.
[45]
After this evidence, the matter was postponed for the Third
Appellant’s bail application, which appears
from the record to
have been finalized on 26 January 2010
[15]
.
Judgment in respect of the First and Second Appellants’ bail
application was withheld on the basis that the bail application
for
the Third Appellant should first be finalized. A single
judgment was ultimately delivered.
[46]
In giving his ruling, the magistrate approached the matter on the
basis that the onus was on all three appellants
to satisfy the court
that exceptional circumstances existed which in the interests of
justice permitted their release on bail.
He found that none of
them had discharged this onus. In his judgment he focused
predominantly on the First Appellant, dealing
very obliquely with the
position and roles of the Second and Third Appellants. In fact
he appears to have simply assumed
that whatever concerned the First
Appellant, applied to them as well.
[47]
Section 65(4)
of the
Criminal Procedure Act provides
that a court
hearing a bail appeal shall not set aside the decision against which
the appeal is brought, unless it is satisfied
that the decision was
wrong, in which event it shall give the decision which in its opinion
the lower court should have given.
[48]
Adverting to the Appellants’ main ground for the appeal, Mr
Daubermann,
who
appeared on their behalf, contended that the charge sheet itself was
decisive to determine whether the Appellants had been “
charged
”,
within the contemplation of
section 60(11)
, with an offence referred
to in Schedule 5 or 6 of the
Criminal Procedure Act. It
didn’t
matter, so he argued, what the investigating officer might come and
say. The matter stood or fell by how the
charge sheet
presented. Even in respect of the further affidavit of
Grobler
which indicated that at least a
prima
facie
charge of rape had been made out as against the First Appellant, the
legal and factual position was that the Appellants had not
been
“
charged
”
within the meaning of
section 60(11)
of the
Criminal Procedure Act.
He
referred me to the
dicta
in
S
v Botha
[16]
,
S
v Van Wyk
[17]
and
Gada
v S
in support of this submission
[18]
.
[49]
It is so that the charge sheet very tersely reflects the charges
without reference even to the relevant legislation.
Assuming,
so Mr
Daubermann
argued, that this was not fatal in itself, since the implication was
that such offences were created under the Sexual Offences
Amendment
Act, none of the charges alluded to by
Grobler
in his first affidavit are in any event listed in Schedule 5 or 6. (I
return to deal with this aspect further below). The Second
and Third
Appellants had no previous convictions, which meant that the court
was, therefore, required to approach their applications
on the basis
provided for in section 60(1)(a). In this regard the onus
remained on the prosecution. As for the First
Appellant, his
position might be somewhat different because he had previous
convictions. These were not proven by the State
[19]
to be of the nature referred to in Schedule 1, however, which might
have elevated the matter to a Schedule 5 enquiry
[20]
.
Accordingly, in respect of his application as well, the burden was on
the State to prove that the interests of justice did
not permit his
release from detention.
[50]
I am not in agreement with Mr
Daubermann
that the meaning of the concept “
charged
”
calls for a narrow legal approach
[21]
.
Neither do I believe that a bail court can simply ignore matter which
goes beyond the formulation in the charge sheet.
Indeed it
would be absurd to elevate form above substance in this manner when
clear evidence or common cause facts otherwise establish
that the
accused faces one of the more graver offences referred to in
Schedules 5 or 6. To my mind this is further not the
effect of
the authorities relied upon by Mr
Daubermann
.
[51]
The dictim in
S
v Botha
[22]
must be read in proper context. It was held in that matter that
averments in charge sheets are sufficient without further
ado to
trigger the onus in section 60(11) - depending which one of the
Schedules are applicable - without a need first to evaluate
the
facts. This observation was made by Vivier, AJA against a
contention that the Legislature could not have intended that
a mere
allegation in a charge sheet was so sufficient. In my view
Botha
,
Van
Wyk
and
Gade
supra
are not authority for the proposition that the prosecution must stand
or fall by the formulation in the charge sheet, or that evidence
and
common cause facts may not establish the jurisdictional fact
[23]
.
[52]
Du
Toit
[24]
suggests that section 60(11) was probably enacted on account of
decisions like
S
v Shezi
[25]
and
S
v Stanfield
[26]
to make it easier for the prosecution to establish the objective
jurisdictional facts which must exist before subsection (a) or
(b)
can come into operation. In the former the State handed in a
charge sheet in a bail application which did not state the
charges in
respect of which the accused was arrested and upon which it required
his continued confinement. Although
it is generally
unacceptable that a deficient charge sheet be relied upon, it was
held that where it is common cause that the accused
was arrested on a
charge referred to in Schedules 5 or 6 of the
Criminal Procedure Act,
the
onus was on him to satisfy the court that the interests of
justice do not require his confinement. The jurisdictional fact
could be established with reference to common cause facts, admissions
or by way of evidence. I quote from the judgment:
“
Waar
die Staat derhalwe staatmaak op die bepaling van artikel 60(11), soos
gewysig, moet daar by wyse van ‘n volledige klagstaat
waarin
die volle besonderhede van die misdryf uitgespel word, dit wil sê
dit moet duidelik wees dat die beskuldigde aangekla
word van ‘n
misdryf soos bedoel in artikel 60(11)(a), soos gewysig, anders moet
daar feite voor die hof geplaas word of as
gemeensaak óf by
wyse van ‘n erkenning óf deur middle van getuieness
waaruit dit duidelik aangetoon word dat
artikel 60(11), soos gewysig,
van toepassing is op daardie betrokke beskuldigde.”
[53]
In
S v Stanfield
it was held that paltry allegations in the
charge sheet could be supplemented with reference to the statements
in the docket.
[54]
In the absence of a written confirmation envisaged in
section 60(11)
,
evidence may establish the jurisdictional facts
[27]
.
Conversely, written confirmation is not required where the
jurisdictional fact is not an issue
[28]
.
[55]
The objective, it seems, is for the accused to know once the
jurisdictional fact moves the burden from the
prosecution to him and
to my mind, for as long as he is left in no doubt as to the nature of
the charges he is facing and is given
a “
reasonable
opportunity
”
to meet the burden put on him in
section 60(11)(a)
or (b) as the case
may be, a deficient charge sheet is of lesser significance
[29]
.
When he knows the charge he is facing, he suffers no prejudice as a
result of a skeletal or
pro
forma
charge sheet and there is nothing inhibiting him from showing
exceptional circumstances (assuming Schedule 6 to be of application),
or acquitting himself of the reverse onus that the interests of
justice permit his release (if Schedule 5 applies)
[30]
.
In this instance the Appellants at all times stood poised to meet the
burden provided for in
section 60(11)
- albeit there was uncertainty
about which of the two sub-sections applied. They could,
therefore, not have been prejudiced.
It could hardly have been
argued that the charges to be preferred against them were not
understood or clearly outlined. On
the contrary, it does not
appear that they were in any way surprised by the case which the
State intended to present.
[56]
I accordingly reject the argument that I am bound to determine this
appeal on the basis that the limited
detail set forth in the charge
sheet is decisive of the matter insofar as the onus is concerned.
[57]
I turn now to a consideration of whether the magistrate was correct
in ruling that Schedule 6 was applicable.
I will confine
my concern in this regard to the First and Second Appellants only as
there was no evidence whatsoever
that the Third Appellant was
complicit with them in the commission of any of the offences.
[58]
In my view it was not out of place for the magistrate to consider at
the outset, and before proceeding with
the hearing of the
application, which of the two schedules was applicable
[31]
.
[59]
Although the evidence of Captain
Grobler
had not at that stage
served before the magistrate, the arguments which were made before
him bear on his ruling. I quote
in this regard from the record:
“
MNR
ROELOFSE
: … in beide dra die
Verdediging die bewyslas, dit is net die graad die swaarte van die
bewyslas wat verskil …
HOF
: (Nie in mikrofoon).
AANKLAER
: Edelagbare die Staat se submissie is dat
(tussenbeide).
HOF
: (nie in mikrofoon). Skedule 5 misdryf?
MR
ROELOFSE
: Skedule 5.
HOF
: (Nie in mikrofoon).
AANKLAER
: … dit is a Skedule 6
Edelagbare om hulle minderjarig is onder die ouderdom van sestien dan
Edelagbare. Die toestemming
kan dan nie wetlik gegee raak nie
en dan sal die Staat dit verder in die hande van die hof laat,
Edelagbare.
HOF
:
(Nie in
mikrofoon).
AANKLAER
: onder sestien jaar, Edelagbare, die Staat se
submissie is dat dit wel statutêre verkragting is, dat dit wel
onder Skedule
6 sal val. In die geval alhoewel dit kan wees dat
van die persone dan toestemming sou gee, sou dit nie wetlik wees nie
omdat
hulle dan onder ouderdom was, Edelagbare. Dit is die
Staat se submissie dat dit ‘n Skedule 6 is en laat dit in die
hande van die hof, Edelagbare.
MNR
ROELOFSE
: As ek mag repliseer
Edelagbare. Dit is juis my problem, my probleem dat statutêre
verkragting en verkragting net nie
dieselfde ding is nie.
Verkragting ontbreek toestemming in die geheel. Die wetgewer
maak nie onderskeid van kan ‘n
person toestemming gee of ‘n
persoon nie toestemming gee nie. Daar is net eenvouding nie
toestemming gegee nie.
Statutêre verkragting wat ‘n
aparte misdryf is, is juis geskep deur die wetgewer waar ‘n
minderjarige wat nie
kan toestemming gee nie, wel toestemming gee en
dit is juis hoekom daardie klagte geskep is. Dit word nie in so
‘n
ernstige lig gesien deur die wetgewer as verkragting nie en
dit is hoekom die vonnise ook van so aard is as wat opgelê
word.
HOF
: Hoe oud is die persone?
MNR
ROELOFSE
: Hulle is (tussen beide).
AANKLAER
: Edelagbare tussen die ouderdomme van 10 en 15.
MNR
ROELOFSE
: 10 en 15 jaar.
AANKLAER
: van 10 tot 15. Daar is meer as
een slagoffer in die saak, Edelagbare. Op hierdie stadium is
daar 13 slagoffers, Edelagbare.
MR
ROELOFSE
: Die punt is net Edelagbare,
selfs waar daar ‘n minderjarige betrokke is, as daar ‘n
klagtestaat opgestel word en daar
was nie toestemming nie, dan sou
die klagtestaat lees verkragting, die feit van die klagte word
uiteengesit en die persoon sal
nie vir statutêre verkragting
aangekla word nie, of dan in die alternatief soos hulle gedoen, vir
statutêre verkragting
aangekla juis omdat dit nie dieselfde
misdruif is nie, dit is hoekom ek sê die wetgewer sal
onderskeid getref het in die
stelling van die Skedule 6 klagtes, dit
is ‘n verkragting en statutêre verkragting want dit is
nie dieselfde misdryf
nie. ...”
[60]
While I am in agreement with the argument that “
rape
”
and “
statutory rape
” are different offences, to my
mind the position is different where the victim is under the age of
12 years. The Sexual
Offences Amendment Act makes clear
provision for this.
[61]
The offence of rape referred to in Schedule 6 is listed as follows:
“
Rape
… as contemplated in
section 3
… of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, … –
(a)
…
.
(b)
Where the victim –
(i) is
a person under the age of 16 years;”
[32]
[62]
It is notable that the offence singled out in Schedule 6 is not
simply “
rape
”, but rape as contemplated in the
relevant sections of the Sexual Offences Amendment Act. One
accordingly has to read
in what is contemplated by section 3 (or 4 as
the case may be).
[63]
The Sexual Offences Amendment Act consolidates all crimes relating to
sexual matters. It repeals the
common-law crime of rape and
replaces it with an expanded statutory crime of rape, which is
applicable to all forms of sexual penetration
without consent,
irrespective of the gender of the perpetrator or the victim. It
repeals the common law crime of indecent
assault and replaces it with
the statutory crime of sexual assault, applicable to all forms of
sexual violation without consent.
It also creates comprehensive
new crimes relating to sexual acts against children.
[64]
Section 3 of the Sexual Offences Amendment Act provides that any
person who unlawfully and intentionally
commits an act of sexual
penetration with any person without the latter’s consent, is
guilty of the offence of rape.
[65]
Section 3 must, in turn be read with section 1(3), which contains an
important provision qualifying the element
of consent. Section
1(2) provides that “(f)
or the purposes of section 3
(inter
alia) “
consent” means voluntary or uncoerced
agreement
”.
[66]
Section 1(3) reads as follows:
“
3.
Circumstances in subsection (2) in respect of which a person (‘B’)
(the complainant)
does not voluntarily or without coercion agree to
an act of sexual penetration, as contemplated in sections 3 and 4, or
an act
of sexual violation as contemplated in sections 5(1), (6) and
(7) of any other act as contemplated in sections 8(1), 8(2), 8(3),
9,
10, 12, 17(1), 17(2), 17(3)(a) and 19, 20(1), 21(1), 21(2), 21(3) and
22 include, but are not limited to, the following:
(a)
Where B (the complainant) submits or is
subjected to such a sexual act as a result of-
(i)
The use of force or intimidation by A (the
accused person) against B, C (a third person) or D (another person)
or against the property
of B, C, or D; or
(ii)
A threat of harm by A against B, C or D or
against the property of B, C or D;
(b)
where there is an abuse of power or
authority by A to the extent that B is inhibited form indicating his
or her unwillingness or
resistance to the sexual act, or
unwillingness to particulate in such a sexual act;
(c)
where the sexual act is committed under
false pretences or by fraudulent means, including where B is led to
believe by A that-
(i)
B is committing such a sexual act with a
particular person who is in fact a different person; or
(ii)
such a sexual act is something other than
that act or
(d)
where B is incapable in law of appreciating
the nature of the sexual act, including where B is, at the time of
the commission of
such sexual act -
(i)
asleep;
(ii)
unconscious;
(iii)
in an altered state of consciousness,
including under the influence of any medicine, drug, alcohol or other
substance, to the extent
that B’s consciousness or judgment is
adversely affected;
(iv)
a child below the age of 12 years; or
(v)
a person who is mentally disabled.”
[67]
Subsection (iv) of subsection (3)(d) is relevant for our purposes :
If, at the time of the common
of the sexual penetration the
complainant is a child under the age of 12 years, any ostensible
“
consent
” by him or her is in law invalid.
Such a child is incapable of consenting to a sexual act, whether
penetration, or
any of the range of offences referred to in
subsection (2) or (3) for that matter. This is provided for in
section 57 of
the Sexual Offences Amendment Act.
[68]
It is indeed so that the Legislature has distinguished in the Act
between offences of rape and consensual
penetration (“
statutory
rape
”), on the other hand, and sexual violation and
consensual sexual violation (“
statutory sexual assault
”)
on the other, where the rape or assault respectively was consensual,
in much the same way as applied in the common law,
but with an
important distinction in respect of children under the age of 12.
[69]
Section 15 creates the offence of statutory rape as follows:
“
(1)
a person (A) who commits an act of sexual penetration with a child
(B) is, despite the consent of B
to the commission of such an act,
guilty of the offence of having committed an act of consensual sexual
penetration with a child.
”
[70]
Section 16(1), in turn, creates the offence of statutory sexual
assault as follows:
“
(1)
a person (A) who commits an act of sexual violation with a child (B)
is, despite the consent of B to
the commission of such an act, guilty
of the offence of having committed an act of consensual sexual
violation with a child.”
[71]
The latter provisions need be read with the definition in section 1
of the word “
child
”,
which means:
“
(a)
a person under the age of 18 years; or
(b)
with reference to sections 15 and 16, a person 12 years or older, but
under the age of 16 years,
…”
[72]
In my view it is clear that the “
child
” referred
to in sections 15 and 16 is older than 12, but younger than 16
years. Below the age of 12, the child’s
consent is
invalid.
[73]
It is notable that the offences of statutory rape and sexual assault
respectively are not listed in sections
1 (2) or (3) where the
element of consent is clarified. In my view this is so because
sections 15 and 16 create separate
statutory offences for consensual
sexual acts (penetration and sexual violation respectively) with a
child older than 12, but younger
than 16. These offences
(contraventions of sections 15 and 16 respectively) do not resort
under Schedule 6, but rather Schedule
1, inasmuch as they amount to
“
sexual offence(s) against a child … as contemplated
in part 2 of Chapter 3
” of the Sexual Offences Amendment
Act.
[74]
In my view, therefore, where children are under the age of 12 years -
because their consent is in law invalid
- sexual acts with them would
either constitute rape
as contemplated in section 3
(a
Schedule 6 offence) where it involves sexual penetration, or sexual
assault
as contemplated in section 5
(A Schedule 5 offence)
where it involves a “
sexual violation”
as defined
in the Act. Presumably in practice the charge sheet will have
to qualify an absence of consent in terms of section
1(3)(d)(iv), but
clearly the Legislature intended to criminalize consensual sexual
acts with a child under 12 years as either rape
or sexual assault as
the case may be. In my view the common law distinction between
rape and statutory rape as it applied
before in respect of children
under 12 years has been overtaken by the statutory omnibus for all
sexual offences which creates
a special dispensation for sexual
offences against such children.
[75]
Before concluding in this regard, and with reference to the Second
Appellant’s role in the offences,
section 55 of the Sexual
Offences Amendment Act creates a separate offence of “
Attempt,
conspiracy or incitement inducing another person to commit sexual
offence
”. The section provides as follows:
“
Any
person who –
(a)
attempts;
(b)
conspires with any other person;
(c)
aids, abets, induces, incites, instigates,
instructs, commands, counsels, or procures another person,
to
commit a sexual offence in terms of this Act, is guilty of an offence
and may be liable on conviction to the punishment to which
a person
convicted of actually committing that offence would be liable.”
[76]
This section criminalizes all anticipatory conduct (attempt,
conspiracy and incitement) in respect of sexual
crimes as well as all
conduct by accomplices to the commission of such crimes. Since
it creates a separate offence, any attempt,
conspiracy, incitement or
conduct as an accomplice would in my view not resort under the
offence “
rape
” referred to in Schedule 6, or
sexual assault referred to in Schedule 5.
[77]
In respect of the First Appellant – who it is implied must have
been the main perpetrator - I am satisfied
that the magistrate
correctly found (even just on the common cause facts which were
argued before him at the commencement of the
bail application) that
he was facing Schedule 6 offences, where penetration was an element,
and Schedule 5 offences in respect
of the charges relating to sexual
assault, in respect of such of the girls as were under the age of 12
years at the time of the
commission of these offences.
[78]
Even if I am wrong in finding that the offence of rape referred to in
Schedule 6 includes consensual penetration
with children below the
age of 12 years, by 15 January 2010 the evidence adduced by the State
in any event established a
prima facie
charge of rape as
contemplated in section 3 of the Sexual Offences Amendment Act as
against the First Appellant which would have
been sufficient to
trigger the onus referred to in
section 60(11)(a)
of the
Criminal
Procedure Act.
[79
]
The position of the Second Appellant is less clear. It could
not have been evident to the magistrate,
before
Grobler’s
affidavit was admitted into evidence, what the extent of her
involvement was. The focus during argument was on acts of
consensual
sexual penetration which she could not have perpetrated.
I find, in the result, that the magistrate erred in ruling that she
faced a Schedule 6 offence which triggered the onus referred to in
section 60(11)(a).
[80]
But even after evidence was adduced, there was still no basis to deal
with the matter as if there were an
onus on the Second Appellant to
satisfy the court that exceptional circumstances existed which in the
interests of justice permitted
her release. The State conceded
during argument that the offences which she faced did not resort
under either Schedule 5
or 6. The provisions of
section
60(1)(a)
of the
Criminal Procedure Act were
, therefore, applicable to
her. In this regard too, the magistrate misdirected himself.
[81]
I turn now to consider afresh whether bail was correctly refused in
respect of the Second Appellant.
I am not persuaded that the
evidence convincingly established the existence of any of the
likelihoods referred to in
section 60(4)
concerning her. The
onus would have been on the prosecution to establish these grounds,
on a balance of probabilities.
Even accepting a strong
prima
facie
case against her relating to certain of the charges, I am
inclined to agree with Mr
Daubermann
- at least in respect of
her - that the grounds advanced by
Grobler
for opposing bail
were largely speculation. The concerns which were raised with
regard to the First Appellant cannot
per se
be extended to
her. The magistrate ought to have dealt with each of the
Appellants’ applications on their own merit.
His failure
to do so proved to be prejudicial to her, and to the Third Appellant
as well.
[82]
The Second Appellant’s circumstances are favourable to the
granting of bail and her evidence in this
regard was not in any way
contradicted by the State except to comment generally on the various
possibilities that she may not stand
trial. It is trite,
however, that there has to be a likelihood, i.e. a probability that
the risks referred to in
section 60(4)
will materialize
[33]
.
A possibility or suspicion will not suffice. While one is
tempted to simply dismiss
Grobler’s
concerns on the basis of the semantic use by him of the word
“
possibility
”
in stating the grounds for his objections to bail, the court is yet
constrained to look beyond the terminology employed
in the affidavit
to ascertain if the State has convincingly established the likelihood
that the Second Appellant’s release
will,
inter
alia
,
impact upon the integrity of the investigation and presentation of
the case, or that she may flee. To my mind the answer
is not.
No basis for disallowing bail can be found in the evidence and even
less so in
Grobler’s
speculative arguments concerning her. The limited concern that
she may be influenced by the First Appellant, which might
result in
her attempting to influence the witnesses, can easily be addressed by
setting appropriate conditions on bail, which is
what I intend to
do.
[83]
With regard to the Second Appellant, I accordingly find that the
State has not proved that the interests
of justice militate against
her entitlement to be released on bail.
[84]
The final issue which I need address is whether the First Appellant,
on the evidence, discharged the onus
resting on him in the bail
application.
Section 60(11)(a)
of the
Criminal Procedure Act obliges
the court in
the case of Schedule 6 offences to order that an accused be detained
in custody until dealt with in accordance with
the law, unless he
advances evidence to satisfy the court that exceptional circumstances
exist which in the interest of justice
permit his release on bail.
[85]
Graver offences, such as those listed in Schedules 5 and 6, are
subject to a more stringent regime.
Whilst an arrested person
is generally entitled to be released on bail if a court is satisfied
that the interest of justice so
permit, the reverse applies where a
person has been charged with offences listed in the schedules.
The reversal of the general
rule was held by the Constitutional Court
in Dlamini
[34]
to limit the
constitutional right to bail, but the relevant provision, i.e.
section 60(11)(a)
, survived a declaration of invalidity because the
limitation was held to be “
reasonable
and justifiable
”
in terms of section 36 of the Constitution in our current
circumstances
[35]
.
[86]
Exceptional circumstances do not mean that “
they
must be circumstances above and beyond, and generally different from
those enumerated in subsection 60(4) – (9) In fact,
ordinary
circumstances present to an exceptional degree may lead to a finding
that release on bail is justified.”
[36]
[87]
What the First Appellant appears to have done in presenting his case
is simply to have gone through the grounds
referred to in section
60(4) on a check-list basis. Further, other than to indicate
that he would plead not guilty, his focus
was not directed on the
strength of the State’s case against him. He also failed
to address
Grobler’s
allegations against him concerning
his admission that he used minor children for sexual purposes, had a
sexual obsession with them
and needed help to control himself against
the temptation to succumb to their invitations. Given the fact
that we are dealing
with a sordid practice which has persisted for a
lengthy period, the First Appellant’s inability to control
himself and having
regard to the vulnerability and availability of
the young girls, there is to my mind a real likelihood that the First
Appellant,
if released on bail, would commit one or other of the
sexual offences referred to in Schedule 1. The unchallenged
evidence
in this regard establishes a disposition on his part,
evident from past conduct.
[88]
With reference to the ground referred to in section 60(4)(b), the
likelihood is very real too, when regard
is had to the First
Appellant’s familiarity with the young girls and his historical
relationship with them that, if released
on bail, he would attempt to
influence witnesses. As the State contended before the bail
court, their poor circumstances,
lack of parental involvement and
need for money makes them particularly vulnerable (“
kwesbaar
”)
and thus open to be influenced. Because of this, bail
conditions prohibiting communication between the First Appellant
and
the witnesses would be ineffective and difficult to enforce.
[89]
A further matter of relevance is the evidence against the First
Appellant that he conspired to commit suicide.
While there is
little to stop an accused from pursing such a desire if he really was
inclined to take his own life, (and I make
no finding that even an
expressed desire necessarily constitutes a reason on its own to
refuse bail) of greater concern is his
exhortation to the Second
Appellant : “
Jy weet niks. Onthou ek gaan dood wees.
Jy kan enige iets sê om daar uit tekom
”. In my
view this shows the extent to which he would go to undermine the
criminal justice system. His desire
to influence his wife is
patently evident in the communication to her. Although he
sought to put a different spin on the
import of the notes which were
confiscated by the police, I believe that he failed to convincingly
explain what he meant by this
particular statement to the Second
Appellant. He dealt with it as follows:
“…
Ja,
wel dit is so, as ek nie daar is nie kan ek niks weet nie, maar dit
is nie waaroor dit gaan nie, ek glo sy is onskulding.
Kyk as jy
luister na van die leuens wat ek gelees het hier, sal enigiets gedoen
word om haar skuldig te probeer kry en dit gaan
onregverdig wees, dit
gaan heeltemaal onregverdig om haar skuldig te kry op enigiets, want
ek glo nie sy is skuldig.”
[90]
If the Second Appellant is innocent of the charges, it is not clear
on what basis she would be assisted by
saying “
anything
”
to exonerate herself. The distinct impression is that the First
Appellant wishes to direct how she should deal with
the charges even
upon his death so as to obfuscate a successful prosecution against
her.
[91]
I do not agree that the evidence properly established the likelihood
or probability that the First Appellant
was a flight risk (despite
the strength of the State’s case), but when all the relevant
matter is weighed
[37]
, the
grounds which on the evidence have been established (section
60(4)(a), (c) and (d)), do not tip the scale in favour of granting
bail to him.
[92]
The First Appellant has accordingly failed to acquit himself of the
onus resting on him to prove that exceptional
circumstance exist
which in the interests of justice permit his release. In the
result his release on bail is not permitted
and bail to him is
refused.
[93]
I make the following order:
1.
The appeal in respect of the First
Appellant is dismissed.
2.
The appeal in respect of the Second
Appellant is upheld and the order of the magistrate refusing to admit
her to bail is set aside.
3.
It is ordered that the Second Appellant be
released on payment of bail in the sum of R5 000,00, subject to
compliance by her with
the conditions set forth in paragraphs 4 and 5
of this order.
4.
The Second Appellant is prohibited from
having any contact whatsoever with any of the state witnesses pending
the criminal proceedings.
5.
The Second Appellant is required to appear
in court on the dates and at the times and places to which the
criminal proceedings may
from time to time be adjourned, and to
remain present until her case has been dealt with or finalized by the
court.
6.
The Respondent is requested to furnish the
Second Appellant, within five (5) days, with a list of all the state
witnesses who she
is prohibited from having contact with.
B
C HARTLE
ACTING
JUDGE OF THE HIGH COURT
Attorneys
for the Appellants
Peter
Daubermann Attorneys
64
Third Avenue
Newton
Park
PORT
ELIZABETH
Counsel
for the Respondent
Adv
Loots
Director
of Public Prosecutions
[1]
Initially
only the First and Second Appellants were arraigned on these
charges. They were arrested on 23 December 2009.
The
Third Appellant was joined as an accused on 15 January 2010,
ostensibly charged with the same offences.
[2]
From
the record it appears that his arguments were premised on “…
wat
die Staat inderdaad gaan aanbied as getuienis van Staatskant af ter
oponeering van hierdie aansoek …”
rather than on the limited information appearing in the charge
sheet. It is reasonable to assume that he must have had
insight into the affidavit of the investigating officer which the
State ultimately tendered in evidence.
[3]
Section
60(11)
of the
Criminal Procedure Act provides
that
“(n)
otwithstanding
any provision (
thereof
),
where an accused is charged with an offence referred to -
(a)
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 to do so, adduces evidence which satisfies
the court that exceptional
circumstances exist which in the interest
of justice permit his or her release;
(b)
in
Schedule
5
,
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 to do so,
adduces evidence which satisfies the court that the interests
of
justice permit his or her release.”
[4]
It
is an accepted practice in bail applications to tender evidence by
way of an affidavit. Such an affidavit will, however,
obviously have less probative value than oral evidence which is
subject to the test of cross examination
(S
v Pienaar
1992 (1) SACR 178
(W);
Moekazi
and Others v Additional Magistrate, Welkom, and Another
1990 (2) SACR 212
(O);
S
v De Kock
1995 (1) SACR 299
(T);
S
v Hartslief
2002 (1) SACR 7
(T) and
S
v Maki en Andere
1994 (2) SACR 630
(E).)
[5]
This
is a reference to the First and Second Appellant respectively.
[6]
The
correct citation is the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, No. 32 of 2007
. In this judgment I
refer to it simply as the Sexual Offences Amendment Act.
[7]
These
are the names by which the First and Second Appellant appear to be
commonly known.
[8]
The
ages of these two girls are not specified in Grobler’s
affidavit.
[9]
This
is extracted from
Grobler’s
affidavit.
[10]
It
is difficult to distinguish the “
information
”
from the often very subjective observations of
Grobler
.
[11]
Some
of these statements are clearly contradictory.
[12]
It
is not clear from
Grobler’s
affidavit if the Second Appellant conveyed as much to him, or if
this is his own conclusion.
[13]
The
Appellants lived in Durban prior to moving to Port Elizabeth.
[14]
The
First and Second Appellants are married in community of property to
each other.
[15]
There
is no evidence which appears on the record in respect of the Third
Appellant’s bail application. I was assured
at the
hearing of the bail appeal, however, that no
viva
voca
evidence was adduced by any of the parties and that it was
unnecessary to reconstruct the record for this purpose. The
parties were in agreement that I could dispose of the matter in the
absence of such a transcript.
[16]
2002
(1) SACR 222
(SCA) at 229, para 16.
[17]
2005(1)
SACR 41 (SCA), para 3.
[18]
2007
(3) SA 43
NC at para 5.
[19]
This
submission was somewhat mischeviously made as the
Criminal Procedure
Act compels
the accused in bail proceedings to inform the court
whether he has “
previously
been convicted of any offence”
under
pain of prosecution and imprisonment for withholding it or
furnishing it untruthfully
.
(
Section
60(11B)(a)(i)
and
(d)
).
Such information must surely include details of the sentence
imposed.
[20]
Schedule
5
lists “(a)
n
offence referred to in
Schedule
1
– “(a) and the accused has previously been convicted of
an offence referred to in
Schedule
1
,
…”.
Schedule
1
, in turn, lists “(a)
ny
offence, except the offence of escaping from lawful custody …,
the punishment whereof may be for a period of imprisonment
exceeding
six months without the option of a fine
”.
Leaving aside the question of the exact import of the sentences
imposed pursuant to the First Appellant’s
prior convictions,
none of the offences appear on the list in
Schedule
1
.
[21]
In
Prokureur-Generaal,
Vystaat v Ramakhosi
1997 (1) SACR 127
(O) Edeling J held that the term “
charged
”
has a narrow meaning, but in that matter offence was mentioned “
in
passing
”.
It was clarified that the person in custody must be charged with a
definite, circumscribed (“
omlynde
”)
and understandable offence. This was not the problem in the
present matter.
[22]
Supra
at
229 d – e.
[23]
S
v Van Wyk
supra
merely repeated the
dictum
in
Botha.
[24]
Commentary
on the
Criminal Procedure Act at
9 – 48B.
[25]
1996
(1) SACR 715(T).
[26]
1997
(1) SACR 221 (C).
[27]
S
v Kock
2003 (2) SACR 5
(SCA) where it was assumed, by the end of the bail
application in the magistrate’s court, that the State had done
enough
to establish the jurisdictional fact. (At 9 g).
[28]
Jacobs
& Others v S
[2004] 4 All SA 538
(T) at [5].
[29]
Frost
v State
[1997] JOL 1591
(E),
Joseph
v S
[2001] 3 All SA 448
(C),
Sarang
v S
[2003] JOL 11547 (T)
[30]
S
v Mohammed
1999 (2) SACR 507
(C) at 513e.
[31]
There
are several judgments which confirm that the magistrate should not
adopt a supine approach in bail applications, but rather
a
pro-active one.
[32]
I
quote only the relevant portion thereof. The offence of
compelled rape is not relevant for our present purposes.
[33]
S
v Dlamini; S v Dladla and Others, S v Joubert
and
S
v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51(CC)
;
S
v Mabena and Other
2007 (1) SACR 482
(SAC) at 79 F.
[34]
S
v Dlamini
supra
at
485 D.
[35]
At
page 90 a - b.
[36]
S
v Dlamini
supra
at
page 89 e,
S
v Botha supra
at par [19];
Rudolph
v S
[2009] JOL 24336
(SCA) at par [9].
[37]
In
terms of
section 60(9)
of the
Criminal Procedure Act