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[2012] ZAECPEHC 23
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Gcwabe v S (CA&R 03/2012) [2012] ZAECPEHC 23 (17 April 2012)
1
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO.: CA&R 03/2012
In the matter between:
THOZAMA KHANYISO GCWABE
….....................................................
APPELLANT
AND
THE STATE
….....................................................................................
RESPONDENT
JUDGMENT
______________________________________________________________
DUKADA, AJ
INTRODUCTION
[1] The appellant in this matter was
initially arrested on the 22
nd
November 2007 and was
charged with a number of charges, namely:-
(i) 502 counts of fraud involving use
of credit cards data, alternatively contraventions in terms of the
Electronic Communications and Transactions Act 25 of 2002
by
cloning the credit cards mentioned in the afore-said 502 counts.
These counts relate to acts committed during the period from
24
th
October 2007 to the 7
th
July 2008.
(ii) Counts 503 to 529 in which he is
charged of contravening
section 45
read with
section 1
,
44
(1)(a) and
51
of the Regulation of Interception of Communications and Provision
of Communication-related Information Act 70 of 2002 read with
Regulation 1263 as promulgated under Government Gazette No. 28371
dated 29-12-2005 in that during the period between October 2007
to
August 2008 he did wrongfully and unlawfully manufacture, assemble
possess, sell, purchase or advertise some master cards international
visa international cards, diners club cards and American Express
cards, Capital 1 Bank USA cards and FNB visa Gold cards;
Counts 557-564 in contravention of
the
Electronic Communications and Transactions Act 25 of 2002
by
cloaning various credit and debit cards on or about 11
th
March 2008 and 8
th
August 2008;
Count 565-money laundering in
contravention of the Prevention of the Organized Crime Act 121 of
1998 during the period between
7
th
and 8
th
August 2008;
Count 567-Contravention of
section
67A
of the
Criminal Procedure Act 51 of 1977
for failing to comply
with bail conditions.
[2] The appellant was arrested and
charged with another person, both applied for bail and were both
refused. It is only Appellant
who has appealed to this Court against
such refusal.
[3] The charge sheet with the record
bears Case No.: CCC1/05/10 which appears to be a case number of the
Complex Commercial Crime
Court, Port Elizabeth.
[4] The first date of appearance is
reflected as 29
th
January 2010. In the preamble to Count
567 it is reflected that Appellant was arrested on the 18
th
December 2007 and was released on a bail of R15 000,00 in Court 22 of
the Port Elizabeth Magistrate’s Court. A further condition
of
the bail was that the Appellant be under 24 hours “house
arrest” at house No. 5344 Saba Street, Kwazakhele, Port
Elizabeth. The aforementioned bail condition was amended reducing the
24 hours arrest to between the hours of 18H00 and 6H00 daily.
[5] While out on bail Appellant was
again arrested on the 20
th
or 21
st
August 2008
at Caltex La Poche Motors in connection with Counts 440 to 453,
457,458, 462, 463 and 470 involving fraud alternatively
the wrongful
and unlawful cloaning of Visa foreign cards, American Express card
and Master card.
[6] Appellant was also charged with
count 567 mentioned in para 1(v) above.
[7] From the record his first
appearance in Court, which in this instance is the Regional
Magistrate’s Court, Port Elizabeth,
is reflected as the 29
th
January 2010. I assume that before that, after his second arrest,
Appellant has been appearing in the Magistrate’s Court,
Port
Elizabeth. Appellant was then remanded in custody a number of times
and he applied for bail on the 9
th
June 2011 and the
application was refused on the same day.
[8] Appellant was legally represented
by Mr Bence during his bail application.
[9] Appellant noted on appeal against
the decision refusing his bail application to this Court on the 1
st
January 2012.
[10] Appellant has filed an affidavit
together with his Notice of Appeal in which he explains the reason
for his failure to note
his appeal timeously. He cites the following
reasons:-
(i) due to financial constraints he
decided to provisionally delay
noting this appeal but rather give
preference to ensuring that the trial proceeds on the 15
th
to 19
th
August 2011 which were dates of trial of the main
case. Unfortunately the case was postponed
for trial to the 22
nd
June
2012.
There was also a delay in obtaining
the transcribed record of the bail application proceedings;
He also experienced difficulties in
raising funds to engage an attorney.
[11] It is also apparent from the
record that the Appellant changed the legal representative who
handled his bail application and
another one is handling this Appeal
on his behalf. It is not stated in the papers as to when his new
legal representative took
over. Although the delay to note this
appeal has taken about six months, it appears to me that for most of
that time the Appellant
was in custody and not legally represented.
Without going deep into this aspect I
am of the view that Appellant’s failure to note the appeal
timeously should be condoned
and is hereby accordingly condoned.
[12] The Appellant’s bail
application was proceeded with as a scheduled 1 offence bail
application and as such was subjected
to section 60(1)(a) of the
Criminal Procedure Act 51 of 1977 (the CPA) which provides:-
“
An
accused who is in custody in respect of an offence subject to the
provisions of section 50(6), be entitled to be released on
bail at
any stage preceding his or her conviction in respect of such offence
if the Court is satisfied that the interests of justice
so persuit
.”
[13] From the facts of this matter it
appears that this bail application related to the arrest and
detention of the Appellant in
respect of a Schedule 1 offence
allegedly committed while he was out on bail in respect of a schedule
1 offence. However, when
Appellant was charged, the new charge or
charges were simply added to the old charges in the old charge sheet.
That seems to be
what has caused confusion as to how the bail
application should be proceeded with. The question to look into this
whether this
bail application should not have been treated as a
schedule 5 offence bail application.
[14] Ordinarily the offence in respect
of which the Appellant was arrested and detained in this matter is a
Schedule 1 offence,
but what gives an extra colour to it is that it
was allegedly committed while the Appellant was out on bail in
respect of another
Schedule 1 offence. Schedule 5 to the CPA provides
as follows in regard to a Schedule 1 offence which turns to be a
schedule 5
offence:-
“
An
offence referred to in Schedule 1-------------which was allegedly
committed while he or she was released on bail in respect of
an
offence referred to in Schedule1.”
[15]
The Magistrate addressed this particular question as follows in his
judgment
1
:-
“
Should
the State (sic) have to choose (sic) to charge the accused on a
separate charge sheet and this application have been bought
before
Court I keep in mind this would have been a Schedule 5 offence as the
accused have in the past already been or stand trial
on a Schedule 1
offence as being a second Schedule 1 offence. However, irrespective
of the test the Court applied to determine
whether or not the accused
is a suitable candidate for trial. I am satisfied that the answer
will remain the same.”
[16] In my view the difference in
proceeding with the bail application as in respect of a Schedule 1
offence or a Schedule 5 offence,
is on the question as to on whom the
onus rests to show that it is in the interests of justice that the
accused been admitted to
bail or be refused, as the case may be. If
the offence is a Schedule 1 offence such onus rests on the State
whereas if it is a
Schedule 5 offence it rests on the Appellant.
[17] Dealing with
the onus created by section 60(1)(a) of the CPA, Van Dijkhorst J
remarked as follows in S v Vermaas
2
at 530 d-e:-
“
The
general rule set out in section 60(1)(a) is that the accused is
entitled to be released on bail unless the Court finds that
it is in
the interests of justice that he be detained in custody
.
That wording, in my view, creates an onus. The onus rests upon him
who asserts that the accused should not be released, that is
the
State.”
[18] In regard to the onus in respect
of a Schedule 5 offence, the learned Judge goes on to say at page 530
para g-h:-
“
A
number of crimes on which the applicant stands arraigned fall under
Schedule 5. In essence the charges amount to so-called round-tripping
by the illegal use of the financial rand. The applicant therefore
bears the onus to satisfy me on a balance of probabilities that
the
interests of justice do not require his detention
.”
[19] One may also
have regard to the following remark by Kriggler J in S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat
3
at para 65; in
respect of the onus created by section 60(11)(b) of the CPA:-
“
This
view is strengthened by a consideration of section 60(11)(b). That
section stipulates that an accused must satisfy a Magistrate
that the
‘interests of justice’ permit his or her release. It
clearly places an onus upon the accused to adduce evidence
-------------It is clear that an accused on a Schedule 5 offence will
be granted bail if he or she can show, merely, that the interests
of
justice permit such grant.”
[20] Coming to the
present case, in my view, the bail application should have been
proceeded with as in respect of a Schedule 5
offence. The onus, as a
consequence thereof, would have rested upon the Appellant to satisfy
the Court
a
quo
that
the interests of justice permit his release. He would have had to
discharge that onus on a balance of probabilities. What has
happened
in this bail application has affected the sequence of evidence.
BINNS-WARD AJ remarked as follows, in connection with
that aspect, in
S v Porthen & Others
4
at para 60:-
“
------the
Magistrate and the prosecutor acquiesced in the request by the
appellants’ legal representative, that the investigating
officer,
who
obviously was a State witness, should testify first. I consider that
it was undesirable that they should have done so. The legislature
scheme of section 60(11)(a) of the CPA indicates that it is for the
applicants in cases affected by the provisions to put their
case
forward first and for the State to answer it. An applicant for bail
in a case subject to section 60(11)(a) obtains a potential
and
unintended advantage if the bail hearing is conducted in an order at
odds with the plain legislative intention.”
I fully agree with these comments and
in my view they apply equally to an application for bail which is
subject to section 60(11)(b)
of the CPA.
I will, however, revert later in this
judgment as to the consequences thereof, if any, in respect of the
result of the Appellant’s
bail application.
[21] I now turn to the facts of this
matter. The State was the first to adduce evidence through only one
witness namely Kevin Wayne
Godfrey, a member of the South African
Police Services, holding a rank of an Inspector. His evidence is that
he is the investigating
officer in this matter. The appellant is
charged with several counts of fraud as well as contravention of the
Electronic Communications
Act and contraventions of bail conditions.
The Appellant was first arrested and thereafter released on bail of
R15 000,00 plus
a condition which he described as “house
arrest”. The “house arrest” condition was later
reduced to 6am
up to 6pm, meaning that the Appellant was required not
to leave his house or home between 6am and 6pm. Appellant while out
on the
afore-mentioned bail allegedly committed further offences
similar to the first ones and was arrested at the scene of the crime.
He objected to the granting of bail to
the Appellant on the following grounds:-
He was a flight risk;
He committed exactly the same
offences while he was out on bail and a laptop was found in his
possession containing information
which was obviously to be used in
committing further crimes. The laptop was sent to experts who found
that it contained information
of cloaned cards belonging to overseas
account holders.
There was a strong case against the
Appellant. There is a lot of video footage at businesses where the
cloaned cards were presented
for purchasing goods. Few of the
cloaned cards have been recovered.
[22] Under cross-examination by Mr
Bence, legal representative for the Appellant, Mr Godfrey stated that
he has not personally watched
the video footage.
The case for the State was then
closed.
[23] Appellant also testified. He told
the Court that he was arrested and released on a bail of R15 000,00
plus a condition of “24
hours house arrest” which was
later reduced to 18h00 to 6h00. He attended Court on all dates of his
case. He was re-arrested
on an allegation of having used a cloaned
card at a garage in Port Elizabeth. He denies to have done that. He
said that incident
happened at about twenty minutes past 5pm. He was
asked by the management of the garage to wait for the owner and
police to arrive
there. He said according to the video footage that
he watched at the garage he was there before 6pm. He has no previous
convictions.
He is unmarried with two children. He requested the
Court to grant him bail in the amount of R10 000,00 which he, his
friends and
family can raise. At the time of his arrest he had just
resigned from Foschini Group and before that he was a consultant at
Vodacom
from about 5 years.
[24] Under cross-examination by the
Public Prosecutor he said the laptop in question was found at the
hotel and it belongs to one
Ngceba Ncapayi who was busy with an
event. That man was staying at the hotel making preparations for that
event. He visited him
at the hotel as he is his friend. He says it is
for the first time in the bail application hearing for him to hear
about the laptop.
About his second arrest Appellant said:-
“
I
wouldn’t want to get into the merit of the case now but which
is we didn’t see it on that video footage and what happened
is
that the owner then called Mr Van Eck and they all said no, they, the
policeman said they cann’t see the card but they
did Mr Van Van
Eck apparently ask them that can you please hold him then I will come
tomorrow and then see whether I will release
the person or not.”
Appellant then closed his case without
calling any further evidence.
[25] This appeal is brought in terms
of the provisions of
section 65
of the
Criminal Procedure Act, (the
CPA). The provisions relevant here are those of
section 65(4)
which
provides as follows:-
“
The
Court or Judge hearing the appeal 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 or his opinion
the lower
Court should have given.”
These provisions have been considered
in a number of cases. See S v Green & Another 2006(1) SACR 603
(SCA); S v Barber 1979(4)
SA 218(D); S v Gaseb 2007(1) NR 310 (HC); S
v Faye 2009(2) SACR 210 (TK); S v Ali 2011(1) SACR 34(ECP) and S v
Porthen & Other
2004(2) SACR 242(C) , to mention a few.
[26] In S v Barber,
supra ,
at
220E-H Hefer J, as he then was, remarked as follows:
“
It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly. Accordingly
although this Court may have a different view, it should not
substitute its own view for that of the Magistrate because that would
be an unfair interference with the magistrate’s exercise of his
discretion. I think it should be stressed that, no matter
what this
Court’s own views are, the real question is whether it can be
said that the magistrate who had the discretion to
grant bail
exercised that discretion wrongly. Without saying that the
magistrate’s view was actually the correct one, I have
not been
persuaded that it is the wrong one.”
[27] Binns-Ward AJ remarked as
follows, on the above observations, in S v Porthen and Others,
supra
,
at para 7:-
“
There
can, with respect, be no quarrel with the correctness of the
observations by Hefer J as a general proposition.”
The learned Judge remarked further at
para 16 with reference to S v Botha en ʼn Ander 2002(1) SACR 222
(SCA), as follows:-
“
In so far as
the quoted dictum in S v Barber (
supra)
might be amenable to be construed to suggest that the Appellate
Court’s power to intervene in terms of
Section 65(4)
of the CPA
is strictly confirmed , in the sense of permitting interference only
if the magistrate has misdirected him or herself
in the exercise of
his or her discretion in the narrow sense, I consider that it would
be incorrect to put such construction on
the subsection; certainly in
respect of appeals arising from bail applications made in terms of
Section 60(11)(a)
of the CPA. I am fortified in this conclusion by
the manner in which the Supreme Court of Appeal dealt with the bail
appeal in
Botha’s case
supra
.
(See paras [21]- [27] of the judgment. It is clear that the Appeal
Court undertook its own analysis of the evidence and came to
is own
conclusion that the Appellants had not discharged the onus on them in
terms of
section 60(11)(a)
of the CPA. (The fact that the appeal in
Botha’s case was an appeal from a decision of the bail
application by the High Court
as the Court of first instance does not
affect the principle in issue.”
[28] The learned Judge remarked
further as follows at para 17 in S v Porthen and Others, supra;
“……
it
is still necessary to be mindful that a bail appeal, including one
affected by the provisions of
Section 60(11)(a)
goes to the question
of deprivation of personal liberty. In my view that consideration is
a further factor confirming that
Section 65(4)
of the CPA should be
construed in a manner which does not unduly restrict the ambit of an
appeal Court’s competence to decide
that the lower Court’s
decision to refuse bail was “wrong.” See Section 39(2) of
the Constitution of the Republic
of South Africa Act 108 of 1996.”
These views expressed by Binns-Ward AJ
were cited with approval in S v Faye,
supra
, and I also whole
heartedly alogin myself with them.
[29] In S v Dlamini; S v Dladla and
Others; S v Joubert; S v Schetekat,
supra
at 782e-h, Kriegler
J dealt with the manner in which a Court hearing a bail application
is to determine whether or not “interests
of justice permit”
the release of an accused person on bail as follows:-
“
In
deciding whether the interests of justice permit the release on bail
of an awaiting trial prisoner, the Court is advised to look
to the
five broad considerations mentioned in paras (a) to (e) of subsection
(4), as detailed in the succeeding subsections and
it then has to do
the final weighing up of factors for and against bail as required by
subsection (9) and (10). Subsections (4),
(9) and (10) of section 60
should therefore be read as requiring of a Court hearing a bail
application to do what Courts had always
to do, namely to bring a
reasoned and balanced judgment to bear in an evaluation , where the
liberty interests of the arrestee
are given the full value accorded
by the Constitution. In this regard it is well to remember that
Section 35(1)(b) itself placed
a limitation on the rights of liberty,
dignity and freedom of movement of the individual. In making the
evaluation, the arrestee
therefore does not have a totally
untrammelled right to be set free. More pertinently than in the past,
a Court is now obliged
by subsection 60(2)(c)(3) and (10) to play a
proactive role and is, helped by subsection (4) to (9) to apply its
mind to a whole
panoply of factors potentially in favour of or
against the grant of bail.”
It is clear in the above quotes that
the Court a quo had to weigh up the considerations referred to in
subsection(4), (9) and (10)
of section 60 and then exercise a value
judgment according to all the relevant criteria on the facts placed
before it. At the end
the Court a quo had to decide the matter by
weighing the interests of justice against the right of the accused to
his personal
freedom and in particular the prejudice he is likely to
suffer if he were to be detained in custody taking into account the
factors
mentioned in section 60 (9)(a) to (g).
[30] Mr Hattingh, Counsel for the
Appellant, has argued that the Magistrate erred in not taking into
consideration, adequately or
at all and/or the cumulative effect of
the facts as set out in sub-paragraphs 4.1 to 4.2.11 of the Notice of
Appeal which read
as follows:-
“
4.1
That
the Appellant presented evidence by way of
viva
voice
evidence
most of which was not disputed or contradicted by the State;
That
there was uncontested evidence before the Court that:
The
Appellant has a fixed place of abode at 5344 Kwazakhele,Port
Elizabeth;
That
he has no previous convictions;
That
there are no outstanding cases against him;
That
he is able to raise R10 000,00 for bail;
That
it was 17H25 (and not within the parcod 18H00 to 06H00 that he
should have been at home in terms of the then existing
bail
conditions) when he was detained at the garage at Forest Hill;
That
, if again released on bail, he will comply with the bail
conditions and attend his trial;
That
he averred that he was not guilty of the alleged offence;
That
the State failed to present any evidence regarding the strength of
the State’s case against the Appellant pertaining
to the new
counts allegedly committed since his release on bail.”
[31] He further argued that in order
to have come to a just and fair decision on whether or not bail
should have been granted, the
Magistrate needed to peruse, interpret
and factually analyse the circumstances as set out in section
60(4)(a) to (e) together with
section 60(5), 60(6); 60(7), 60(8),
60(8A) and 60(9) of the CPA and in doing so, needed to consider all
the evidence presented
to the Court.
[32] The argument by Mr Hattingh in
para 30 above is supported by the decided cases I have referred to
above and I fully agree with
him in that respect.
[33] The reasons for refusing bail
appear to be contained on page 27 of the record , being the last
paragraph of his judgment ,
reading as follows:-
“
I
am
satisfied that it is not in the interests of justice or the community
that the accused be released on bail again. I am satisfied
that the
Court cannot set any bail condition or that the accused can afford
any amount that will safeguard and guarantee the fact
that they do
not commit further offences or that they will stand their trial.
Furthermore I keep in mind that the trial date is
within two months
now. On that basis I am satisfied that the rights of the accused
should give way to the rights of the community
and the rights to
justice, ON THAT BASIS BAIL IS REFUSED.”
[34] Adv De Villiers, Counsel for the
Respondent, has argued that the State has led sufficient evidence to
show that the Appellant
has propensity to commit crimes of the nature
he is charged of. He argued that it is not in the interests of
justice to admit the
Appellant to bail.
[35] From the evidence on record there
is no evidence:
(i) showing a likelihood that the
Appellant , if he were released on bail, he will endanger the safety
of the public or any particular
person;
(ii) showing a likelihood that the
Appellant, if he were released on bail, will attempt to influence or
intimidate witnesses or
Counsel or destroy evidence;
showing a likelihood that the
Appellant , if he were released on bail , will attempt to evade his
trial.
The investigating officer Kevin Wayne
Godfrey makes the following statement on page 2 line 24 of the
record:-
“
It is
obvious that these guys are at risk for flight” but he does not
disclose the factual basis for this. In my view, that
allegation
without a factual basis cannot be accepted as a good reason to refuse
bail in this matter and to do so would be merely
relying on the
ipse
dixit
of
this witness. ”
I can also find no factual basis for
the finding of the Magistrate that the Appellant will not stand his
trial.
[36] I now turn to the question
whether there is evidence showing a likelihood that the Appellant if
he were released on bail, will
undermine or jeopardise the objectives
or the proper functioning of the criminal justice system including
the bail system. This
is provided for in section 60(4)(d), read with
section 60(8).
In terms of section 60(8)(c) in
determining the issue raised by section 60(4)(d) the Court may also
take into account any previous
failure on the part of the accused to
comply with bail conditions. In
casu
one of the reasons
advanced by the State in objecting to the grant of bail to the
Appellant is his failure to comply with a bail
condition that he does
not leave his house between 6H00 and 18H00. Appellant denies this
saying he was arrested at the garage in
question before 18h00. While
cross-examining the State witness K W Godfrey , Mr Bence, legal
representative for the Appellant,
put his question as follows:-
“
My
instructions are that it was before six o’clock at night even
that showed on the video, according to my instructions.”
From this statement one would expect
that when Appellant testified he would confirm that the time when he
was arrested while out
on bail showed on the video was before 18H00.
His evidence or this point goes as follows:-
“
Q. Is there
a time on the video footage:
That point in time “yes”
there was a time on the video footage;
What was the time shown on the video
footage according to your reflection?
It was during the day because you
could see the sun during the day?
I cannot understand, if the time was
showing on the video footage and Appellant noticed it, why he does
not state the time at which
he was arrested. I also cannot understand
why the investigating officer had not taken particular note of the
time at which the
Appellant flouted the bail condition by not being
at his home between 6H00 and 18H00 as shown on the video footage and
also the
time at which Appellant committed the later offences.
In my view, the contents of that video
footage could have assisted the Court a quo in this bail application
but no application was
made to the Court a quo for it to be played in
Court. On page 5 line 20 Mr Bence stated that he had not seen the
video footage.
This is the video footage Appellant says it shows the
time at which he is alleged to have flouted the bail condition to be
in his
house between 06H00 and 18h00. The video footage would have
shown the Appellant committing or not committing the offence in
question.
In S v Green,
supra
, where the Court hearing the
bail application had refused an application by the attorney of the
accused to show a video film of
the incident taken by the closed
circuit television camera, the Court found that the Magistrate should
have granted the application
and it then ordered the State to grant
the defence an access to the video tapes.
As stated by Kriegler J in S v
Dlamini,
supra
, (at para 11) “a bail hearing is a unique
judicial function” and “the inquisitorial powers of the
presiding officer
are greater,” in my view, the presiding
officer in the Court a quo could have played a more active role in
respect of the
video footage evidence.
This issue is related to the one
discussed in para 37 hereinafter.
[37] The Court had also to consider
whether there is likelihood that the Appellant, if he released on
bail will commit a schedule
1 offence.
The Appellant was out on bail in
respect of schedule 1 offences and while out on bail he was arrested
for allegedly committing a
similar offence which is a schedule 1
offence (See Section 60(4)(a)). Section 60(5)(e) provides that in
considering whether the
ground in subsection 4(a) has been
established the Court may , where applicable , taking into account
any disposition of the Accused
to commit offences referred to in
Schedule 1 , as evident from his past conduct.
From the record the Appellant does not
deny to have been on the scene of the commission of this later
offence at the time of its
alleged commission. He only denies that he
committed the offence. He says the video footage does not show him
committing this offence.
He also does not deny that a laptop was
found in his possession which the State states was used in connection
with the commission
of these crimes. He states that the laptop
belongs to his friend and was found in his friend’s bedroom in
a hotel. There
is no evidence from his friend disassociating the
Appellant with the laptop. In my view that aspect invites an
explanation from
the Appellant. The factors in paragraph 37 above and
this paragraph, in my view , are the most that hit the Appellant in
this bail
application.
[38] Mr Hattingh also argued that the
Magistrate took into account that neither of them can afford bail and
refused bail, inter
alia, because Appellant cannot afford an amount
of bail of such nature that it will serve guarantee. He stated that
the Appellant
testified that he can raise plus minus R10 000,00. He
contended that if the Magistrate considered a higher amount he should
have
disclosed it and establish whether the Appellant with the
assistance of others cannot raise it. I fully agree with Mr Hatingh
in
this respect.
[39] Mr Hattingh also raises the
question of the strength of the state case. He argued that the State
case is weak and the State
failed to gainsay the Appellant’s
observations in respect thereof.
In the light of my remarks in
paragraph 37 above the case of the State, in my view, cannot be
described as so weak so as to entitle
the Appellant to be released on
bail on that ground alone. At this stage the enquiry is not really
concerned with the guilt only
of the Appellant , but with the
possible guilt of the Appellant only to the extent it may bear on
where the interests of justice
lie in regard to bail (See S v
Dlamini, supra, at para 11)
I consequently do not agree with Mr
Hattingh in this respect.
[40] The Magistrate also stated as a
reason for refusal of bail , that the trial date “ is within
two months from now”.
Mr Hattingh argued that, that was a
serious misdirection as it can never count against the granting of
bail that an Appellant only
has to sit awaiting trial for another two
months.
Section 60(9) provides that in
considering the question in sub-section (4) the Court shall decide
the matter by weighing the interests
of justice against the right of
the accused to his or her personal 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, some
factors one of which are:-
“
(a) the
period of which the accused has already been in custody since his 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.”
In my view the Magistrate was correct
in law in taking that into account.
[41] The Magistrate did not
maliciously analyse the circumstances as set out in section
60(4)(a)-(e) together with section 60(5),
60(6), 60(7), 60(8A) and
60(9) of the CPA. However at the end of the enquiry he came to the
conclusion that it is not in the interest
of justice that the
Appellant be released on bail.
[42] Reverting to question of onus
discussed above, I fully agree with the remarks by the Magistrate
quoted in para 15 above that
nothing really turned on that at the end
but I re-state the following warning given by Binns-Wards AJ in S v
Porthen,
supra
at para 60:
“………
Magistrates
and prosecutors should be careful to ensure that the legislature’s
intent is not subverted by allowing section
60(11)(a) bail
applications to proceed in a way incongruent with the relevant
provisions of the Act.”
[43] In my view I am satisfied that
the Magistrate in the Court
a quo
was not wrong in his
decision finding that the interests of justice do not permit the
release of the Appellant on bail.
[44] In the circumstances the appeal
is hereby dismissed.
________________
D. Z. DUKADA
ACTING JUDGE OF THE HIGH COURT
Appearance:
Adv A Hattingh : Counsel for Appellant
Instructed by Attorneys
B. MAQUNGU
Adv De Villiers : Counsel for
Respondent
Office of Deputy Director of
Public Prosecutions
PORT ELIZABETH
Date Heard : 1
st
MARCH
2012-
Date Delivered : 17
th
APRIL
2012
1
At
page 28 lines 12-20 of the record
2
1996(1)
SACR 528
3
1999(2)
SACR 51
4
2004(2)
SACR 242 (c)