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[2011] ZAECPEHC 16
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Zwane v S (CA&R08/2011) [2011] ZAECPEHC 16 (17 May 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: CA&R08/2011
Date
heard: 12 May 2011
Date
delivered: 17 May 2011
In the matter between:
BENZILE
McDONALD ZWANE
Appellant
and
THE STATE
Respondent
B A I L A P P E A L J U D G M E
N T
DAMBUZA, J
:
The appellant applied for bail before
the Magistrate, Port Elizabeth and his application for bail was
refused by the magistrate
on 11 March 2011. He now appeals
against the refusal of bail.
The appellant presently stands
charged with conspiracy to commit armed robbery. Before the
Magistrate the evidence of the appellant
himself and that of the
Investigating Officer, Warrant Officer Christopher George Els, was
led.
In summary, the opposition to the
appellant being admitted to bail was premised on the strength of the
state case against the
appellant, which, in turn, is founded on what
is described in the record as a “sketch plan” of the
Police Forensic
Science Laboratory in Port Elizabeth, the
appellant’s previous convictions, a charge of housebreaking
which was pending
against him at the time of the bail hearing and
further charges which the state intended to bring against him.
The appellant’s case was that
the states case against him was weak and that his family and
business interests were suffering
in his absence and that there was
no evidence that he would, in any way, undermine the administration
of justice or not attend
trial if released on bail.
The judgment of the court
a quo
barely sets out reasons for refusal of the bail application. In
the judgment the magistrate starts by stating, correctly, that the
appellant had a duty to persuade him that the interests of justice
permitted that he be admitted to bail. That is so because
the charge
which the appellant is facing is regarded as a schedule 5 offence.
The first ground of appeal is that
the magistrate erred in finding that that the appellant is facing a
schedule 5 offence, based
on the fact that he had committed another
offence whilst on bail in the East London case. This misdirection,
so goes the submission
resulted in an incorrect approach and refusal
of bail.
Indeed the magistrate was wrong in
finding that the charge which the appellant is facing is a schedule
5 offence because of him
having committed this (schedule 1) offence
whilst out on bail on another schedule 1 charge, i.e. the East
London case. The correct
position is that the charge is regarded as
a schedule 5 offence because of the appella’s previous
convictions which I set
out more fully later in this judgment.
Ms
Loots
who appeared on behalf of the respondent submitted that
the misdirection on its own, did not result in the magistrate
wrongfully
refusing bail, as the charge which the appellant faced
remained a schedule 5 offence and the determination of whether the
appellant
should be admitted to bail would still be as prescribed in
law.
I agree that when all the evidence is
considered, the misdirection by the magistrate as set out above did
not necessarily result
in an incorrect refusal of bail. Further, I
am not persuaded that the magistrate was necessarily wrong in
finding that the appellant
committed the offence with which he is
charged in these proceedings whilst out on bail in the East London
case. As I explain
later in this judgment, the state case is that
the robbery or break in which occurred on 9 January is that which
the appellant
conspired in. The robbery is therefore, according to
the state, linked to the sketch plan which was found in the
appellant’s
possession on the 28 October 2010, regardless of
the fact that, by the time the robbery occurred, the sketch plan had
long been
confiscated by the police from the appellant.
Be that as it may, more needs to be
said of the judgment of the Court
a quo.
In terms of section
65 (4) of the Criminal Procedure Act (Act No 51 of 1977, the CPA or
the Act) a court or judge hearing an
appeal against refusal of bail
by a lower court shall not set aside the decision against which the
appeal is brought unless such
court or judge is satisfied that the
decision was wrong, in which event the court or judge shall give the
decision which in its
opinion the lower court should have given.
Section 60(11)(b) Act provides that :
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to in Schedule 5, but not in Schedule
6, the court
shall order that the accused be kept 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.”
In applying the
approach set out in section 60 (11) (b) of the Act the magistrate
looked at
“
whether
there is any likelihood that if accused is released today in this
present case, he will not commit another offence once
he is out”.
1
The magistrate
went on to state that:
“
In
order then for the court to have a clue, the court will have to
revisit and look at the
kind
of a person
the
court is dealing with. It is not in dispute that the accused
has
been around
.
It is not in dispute that
the
applicant has been implicated in more serious offences in the past
.
It is not in dispute that the applicant is now having a pending case
in East London.”
(My
emphasis.)
The magistrate then concluded that the
interests of justice did not permit that the appellant be released on
bail. There is no explanation
in the judgment of what “
kind
of a person”
the court
a quo
found the appellant to
be, or what the magistrate meant by saying the appellant “
has
been around”
. I can also find no explanation in the
judgment of what the magistrate meant in his finding that the
appellant “
had been
implicated
in more
serious offences”.
But in as far as he took into account
charges which had, in the past, been preferred against the appellant,
but had since been withdrawn,
the magistrate clearly misdirected
himself. In any event mere implication in (past) cases is no proper
basis for refusal of bail.
I agree that the magistrate failed in his
duty to give reasons for his decision. See
Sv Maake
2011 (1)
SACR 263
SCA. For this reason this court on appeal is entitled to
consider the bail application afresh.
It is now trite that whilst section
60(11)(b) places an onus on the bail applicant to adduce evidence
that the interests of justice
permit his or her release on bail; the
exercise of determining whether bail should be granted under section
60 (11) (b) of CPA
is no different from that provided for in
subsections 60(1) to (9) thereof.
S v Dlamini; S v Dladla &
Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC). The
function of the court is to assess the
prima facie
strength
of the state case and not to make a provisional finding of guilt or
innocence. See
Du Toit et al
; Commentary on the
Criminal Procedure Act; at 9-48C and the authorities cited therein.
The evidence before the court
a
quo
was that the appellant was a 40 year old married man with 2
children. He had fixed abode at 3840 Hlakula Street Orlando East,
Soweto, in Gauteng, where he lived with his family. He had owned two
homes; the one he lived in together with his family in Soweto
and a
“
holiday house”
in Port Elizabeth. At the time of
the bail application he had recently sold the “
holiday
house”
. He was not certain, however, whether it had been
transferred to the new owner. He was self employed, running an
events management
business. He supported his wife and children
on his income from the business. His passport had been confiscated
from him
by the police. He intended pleading not guilty to the
charge of conspiracy to commit robbery.
As against the above factors, the
appellant had a previous conviction of fraud (1990), two previous
convictions of motor vehicle
theft (in 1990 and 1994 respectively)
and one of malicious injury to property (in 2010). There was also a
charge of housebreaking
that was pending against him. The charge of
housebreaking related to an incident that happened in East London.
It was when Warrant
Officer Els was arresting the appellant for the
East London housebreaking charge that he found the sketch plan of
the Police
Forensic Science Laboratory in the appellant’s
house. This resulted in the charge of conspiracy to robbery which
charge
was only brought against the appellant subsequent to the
break in at the police laboratory.
It was common cause before the court
a quo that in respect of the housebreaking charge the appellant was
arrested on 28 October
2010. In respect of the conspiracy to robbery
charge he was arrested in Johannesburg on 16 January 2011. On both
occasions he
was arrested by Warrant Officer Els together with other
police officers.
Els testified that, having found the
sketch plan of the police laboratory in the appellant’s
possession in October 2010,
he became suspicious and suggested to
his colleagues that drugs which had been confiscated by the police
in other cases and which
were kept at the laboratory, be removed
therefrom. This was done and indeed on 9 January 2011 there was a
break in at the forensic
laboratory. According to Els the particular
storage facility where the drugs (estimated to be valued at R83
million, with a street
value of R415 million) had been kept were
targeted.
When the sketch plan was found in the
appellant’s possession fingerprints belonging to police
officer Thando Tshazibana
were found on the sketch plan. At the
time, Tshazibana worked at the police forensic Laboratory. He
(Tshazibana) was arrested
subsequent to the break in at the
laboratory. The appellant was also arrested following the break in
at the laboratory.
According to Els, when the appellant
was arrested in Johannesburg, 172 Ecstasy tablets and two new stolen
car keys were found
in a motor vehicle that the appellant was using.
At the time of the bail application the appellant had not yet been
charged in
respect of the items found in his possession when he was
arrested, although dockets had been opened and a warning statement
obtained
from him in respect thereof. The difficulty, according to
Els was that the appellant had to be transported to Johannesburg to
be charged in respect of the ecstasy tablets. He could be charged in
Port Elizabeth in respect of the stolen car keys as they
had been
stolen in Port Elizabeth. However, Els had obtained information that
there was a plan for the appellant’s escape
from police
custody. Hence the difficulty in having the appellant transported
from one location to the other. To this extent,
the bail application
hearing was held at the St Albans Prison, where the appellant was
held in custody.
As I have stated the charge of
conspiracy to commit robbery is founded on the sketch plan found in
the appellant’s possession,
and the robbery that eventually
occurred on 9 January 2011. There is no evidence that mere
possession of the document in October
2010 is not the only basis for
the charge preferred against the appellant. The evidence was that
subsequent to the sketch plan
being found on the appellant in
October 2010, the police kept track of the appellant’s
movements. He had had communication
with Tshazibana. Els had
established that the appellant had flown from Johannesburg to Port
Elizabeth on the day preceding the
break-in at the laboratory. He
admitted however that the identity of the culprits could not be
established from the video footage
of the break in. He had, however,
obtained the DNA material from the appellant and, at the time of the
bail hearing, the police
were still awaiting the results of the DNA
analysis.
The submission, on behalf of the
appellant, that no evidence implicates the appellant in the incident
that occurred on 9 January
2011 together with the appellant’s
personal circumstances may, at first glance, appear to justify a
finding that the appellant
has discharged the onus under section 60
(11) (b) of the CPA. The argument is that the only evidence
implicating the appellant
in the charge is the sketch plan. But that
is not where the matter ends. Other factors such as the appellant’s
previous
convictions and the evidence that when the police arrived
to arrest him in Johannesburg, the appellant attempted to flee by
jumping
off the balcony of the building wherein he had been
sleeping, remain relevant considerations. I also do not think I can
ignore
the evidence relating to impending charges relating to
possession of drugs and stolen motor vehicle keys. The explanation
as
to why the appellant has not been charged with in respect of
these items is, in my view, credible. In terms of section 60 (4) of
the CPA refusal to grant bail shall be in the interests of justice
where one or more of the grounds set out in section 60 (4)
(a) to
(e) of the Act are established. Included in the grounds referred to
are the likelihood that a bail applicant will commit
a schedule 1
offence, will attempt to evade his or her trial, and/or his or her
release will disturb public order or undermine
public peace or
security. The evidence that the appellant tried to flee when the
police came to arrest him does not give an impression
of a person
who is willing to stand trial. It is in this context that the
appellant’s mere pronouncement that he will stand
trial must
be viewed. Further, it appears from the record that there was
considerable media or even public interest in the matter.
Possession, by an ordinary member of the public of a drawing
depicting police exhibit storage facility cannot, in my view,
engender confidence in the proper functioning of the criminal
justice system. The appellant stands charged possession of such
document in relation to a plan to commit armed robbery. The
appellant’s record of previous convictions does show a
disposition
to commit offences referred to in schedule 1 to the Act.
Again I am mindful that some of the previous convictions are quite
old.
I am also mindful of the fact that the appellant has a fixed
abode, a family and a business in the country, and that he has, in
the past, on more than one occasion, stood trial and accepted
punishment for his misconduct. But when all these are viewed against
the evidence of Warrant Officer Els I am unpersuaded that the
interests of justice permit that the appellant be admitted to bail
in this instance.
Consequently:
The appeal is dismissed.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the appellant: Adv J W Wessels
instructed by D. Gouws Inc of Port Elizabeth
For the respondent: Adv I Loots on
behalf of the Director of Public Prosecutions, Port Elizabeth
1
Page
99 lines 20 to 24 of the record