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[2012] ZAECPEHC 34
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Najoe and Others v S (CA&R 23/2011) [2012] ZAECPEHC 34; 2012 (2) SACR 395 (ECP) (25 May 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH )
Case
No.: CA&R 23/2011
Date
heard: 23 May 2012
Date
delivered: 25 May 2012
In the matter between:
JUSTIN NAJOE
ANDRICO WILLIAMS
SHANNON WAVEN SHANE MOPP
JUNAID VAN VUGHT
Applicant
and
THE STATE
Respondent
J U D G M E N T ON
APPLICATION FOR BAIL
DAMBUZA, J
:
[1] The applicant is one of four
accused who have been charged with robbery with aggravating
circumstances, kidnapping, unlawful
possession of a firearm, unlawful
possession of ammunition and two counts of murder. He is presently
held in custody, awaiting
trial in respect of these charges at the St
Albans Correctional Facility, Port Elizabeth. Trial is set to proceed
on 10 September
2012.
[2] As is apparent from the charges,
some of the offences with which the applicant has been charged are
offences listed under Schedule
6 of the Criminal Procedure Act 51 of
1977 (the Act). These are robbery with aggravating circumstances and
the two counts of murder.
[3] Consequently the onus is on the
applicant to satisfy the court, on a balance of probabilities, that
the interests of justice
permit his release on bail. In this regard
section 60 (11) of the Act provides that:
“(11) Notwithstanding any
provision of this Act 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 reasonable opportunity to do so, adduces
evidence which satisfies
the court that exceptional circumstances
exist which in the interests of justice permit his or her release”.
[4] The applicant did not give oral
evidence; he filed an affidavit in which he sets out his personal
circumstances and the reasons
why I should order that he be released
on bail. He is a 23 year old man who lives with his parents at 37
Beaumont Street, Bethelsdorp,
Port Elizabeth. His family has lived at
this address for three years. At the time of his arrest he was
employed as a cashier at
Checkers, having left school in 2006. In the
past he has also held employment with Ackermans in Greenacres, Port
Elizabeth and
has assisted his father in his garden services
business. There are no other pending charges against him. He has one
previous conviction
of assault with intent to do grievous bodily
harm, for which he was sentenced on 14 February 2008, to 18 months
correctional supervision.
[5] Evelyn Howley, A neighbour to the
applicant gave evidence in support of the application. Her evidence
in essence was to the
effect that in the 17 years during which she
has known the applicant she has never had a problem with him and has
generally never
known him as troublemaker. She also handed into court
a petition signed by 24 other neighbours and members of the community
who
know the accused from church. They all register their support
for the applicant being admitted to bail.
[6] It is trite that there is no
closed list of factors that constitute exceptional circumstances
under section 60(11). What becomes
evident from the numerous cases in
which the courts have considered applications for bail where the
applicants face charges listed
under schedule 6 of the Act is that
what constitutes exceptional circumstances is, in each case,
determinable in the circumstances
of a particular case. The following
are some of the guidelines laid by the courts for determination of
exceptional circumstances:
“
An
applicant is given broad scope to establish the requisite
circumstances, whether they relate to the nature of the crime, the
personal circumstances of the applicant, or anything else that is
particularly cogent…..In any event one can hardly expect
the
lawgiver to circumscribe that which is inherently incapable of
delineation. If something can be imagined and outlined in advance,
it
is probably because it is not exceptional…..In requiring that
the circumstances proved must be exceptional the subsection
does not
say they must be circumstances above and beyond, and generally
different from those enumerated (
under
s60 (4)-(9) of the Act
)”
1
[7] The writers Du Toit and Others in
the
Commentary on the
Criminal Procedure Act
say
the
following:
“
the proven circumstances
have to be weighed in the interests of justice. According to Comrie J
‘the true enquiry….is
whether the proven circumstances
are sufficiently unusual or different in any particular case as to
warrant the applicant’s
release. And ‘sufficiently ‘
will vary from case to case’….Where an accused adduces
sufficient evidence
of innocence and such evidence is so strong that
it can be said that he has reasonable prospects of success at his
trial, he has
established ‘exceptional circumstances’”.
[8]
”In
essence the court will be exercising a value judgement in accordance
with the relevant facts and circumstances, and with
reference to all
the applicable criteria.”
2
[9] At the hearing
of this application both counsel for the applicant and for the state
were in agreement as to the applicable
guiding principles on what
constitutes exceptional circumstances. The issue is whether the
factors advanced by the applicant in
support of his application do,
in the context of this case, constitute exceptional circumstances.
[10] As I
understand the case made out by or on behalf of the applicant, it is
that, because he is a person of good character who
has a traceable
address, has held a steady job and whose family and relatives reside
in Port Elizabeth he is not likely to sabotage
the administration of
justice by absconding or not standing trial. Further, on the contents
of the police docket, he is only implicated,
prima
facie,
in the offence of robbery with aggravating circumstances and
kidnapping (the latter not being a schedule 6 offence), so he
contends.
[11] Other factors
which constitute the context within which I evaluate whether the
applicant has proved that the interests of
justice permit his release
on bail appear in the evidence of the investigating officer, Warrant
Officer Johan Reubenheimer. The
Investigating Officer outlined the
incident from which the charges emanate. They are that in the early
morning of the day of the
incident the two deceased were attacked
whilst in a red VW Polo vehicle belonging to Owen Daniel Demingo, the
male deceased. Demingo
was in the company of Sarah- Jane Oliphant,
the second deceased when the incident occurred. Domingo was
dispossessed of his vehicle
and both he and Oliphant were bundled
into the boot thereof. The vehicle was driven away by one of the
assailants, the others being
passengers. Cash was withdrawn from
Demingo’s bank account from a cash dispensing machine located
along the Marine Drive
in Port Elizabeth. The bodies of the deceased
were found later that day. Both of them had died as a result of a
bullet wound each
to the head.
[12] Warrant Officer Reubenheimer
admitted that on the contents of the docket, at some stage prior to
the deceased being shot, the
applicant was dropped off at or near his
home. But Reubenheimer insisted however that the applicant’s
involvement in the
incident did not necessarily end at that stage
because the applicant was, later on that same day, found in
possession of Demingo’s
shoes and the
“face”
of the radio of the VW Polo. According to Reubenheimer, there is also
evidence of pointing out made by the applicant which relates
to the
offences.
[13] A consideration of the
applicant’s personal circumstances in isolation may show that
in all probability he will stand
trial. Further, as Reubenheimer also
admitted, there is no evidence that he might interfere with the
witnesses. All the witnesses,
it would seem, are police officers. But
those are not the only relevant factors in this inquiry; nor do they
outweigh other relevant
considerations in this application. In my
view the interests of justice will best be served if those factors
favourable to the
applicant are weighed against those that are not. I
am alive to the fact that my duty is not to make a provisional
finding of guilty
or innocence. And the applicant states in his
affidavit that he intends to plead not guilty at the trial. But the
strength of the
evidence relating to his alleged implication in the
robbery is no small matter in the consideration of the interests of
justice.
I cannot ignore the fact that the state has presented oral
evidence through Reubenheimer who was subjected to cross examination.
On the other hand, the applicant, who bears the onus in this
application, only filed an affidavit as he has every right to do.
Compared to Reubenheimer’s evidence, the applicant’s
allegations in the affidavit about himself, together with his
criticism of the strength of the state case against him remain
untested just. In any event, the applicant’s own account,
the
state has a strong prima facie case against him on the charges of
robbery with aggravating circumstances and kidnapping. If
the
applicant is convicted he could face a sentence of a long term of
imprisonment.
[13] Whilst it is true that any length
of time spent by an innocent person in custody is too long, and that
the applicant has already
spent over a year in detention.
Reubenheim’s evidence was that the police investigations in
this matter were finalized in
three weeks. The delay in bringing the
matter to trial is neither the fault of the state nor that of the
defence. The problem is
congestion of court rolls. As things stand,
the case will go to trial on 12 September 2012, just over three
months from now.
In all, I am not persuaded that the
applicant has discharged the onus on him to prove, on a balance of
probabilities that the interests
of justice permit his release on
bail.
[14] The application is dismissed
___________________
N.DAMBUZA
JUDGE OF THE HIGH COURT
1
Kriegler J writing the unanimous judgement in Sv
Dlamini; S v Dladla and Others; Sv Joubert; Sv Schietekat
[1999] ZACC 8
;
1999 (2)
SACR 51
(CC)
2
S v Petersen
2008 (2) SACR 355
(C )