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[2013] ZAECPEHC 7
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Swarts v S (CC 38/2011) [2013] ZAECPEHC 7 (8 February 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE NO: CC
38/2011
Date
Heard:8 February 2013
Date
Delivered:8 February 2013
In
the matter between:
BENEDICT
DANIEL SWARTS
Applicant
and
THE
STATE
Respondent
E
X T E M P O R E J U D G M E N T
GOOSEN, J:
The applicant has been
arraigned for trial before this court on three charges, namely
murder, unlawful possession of a firearm
and unlawful possession of
ammunition. The applicant is charged together with three other
persons. The trial is scheduled to
commence on 25 March 2013. The
applicant now applies for bail pending the finalisation of the
criminal trial.
On Monday this week I
was approached in chambers by the applicant’s counsel and the
prosecutor and requested to hear this
application. I was informed
that the application had been drawn in October 2012. It appears
that the delay between then and
now was on account of obtaining the
investigating officer’s opposing papers. On the assurance
that the prosecution’s
opposing papers would be served later
on that day I set the matter down to be heard this morning following
completion of the
opposed motion court roll. It was confirmed by Ms
Coertzen
, on behalf of the applicant, at the hearing of the
matter, that this application is the first occasion on which the
applicant
has applied for bail.
The circumstances in
which the alleged offences were committed and the nature of the
offences is set out in the summary of substantial
facts annexed to
the indictment. According to that summary the deceased was one
Shevandre Mintoor. It is alleged that the deceased
and accused 2,
one Eugene Steenkamp, played rugby for rival teams and that this
resulted in long-standing differences between
the two. It is
alleged that accused 2 obtained the assistance of the other three
accused persons, including the applicant, in
order to kill the
deceased. On 7 May 2010 the deceased was at a tavern watching some
persons playing pool. All four of the
accused persons arrived at
the tavern in a motor vehicle. The applicant and accused 2 entered
the tavern to look for the deceased.
The applicant was armed with a
9mm parabellum calibre semi-automatic firearm. Whilst accused 2
went to the shop section of
the tavern in order to distract the
owner the applicant entered the tavern, walked up to the deceased
and shot him five times.
The accused then fled the scene and the
deceased died on the scene as a result of gunshot wounds.
Section 60
(11) of the
Criminal Procedure Act, 51 of 1977
provides that:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to –
In schedule 6, the court
shall order that the accused be detained in custody until he/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 interests of justice permit his/her release;
In schedule 5, but not
in schedule 6, the court shall order that the accused be detained in
custody until he/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/her release.”
Schedule 6 to the Act
refers,
inter alia
, to a charge of murder when it was planned
or premeditated. It also refers to the offence of murder when
committed by a person,
group of persons or syndicate acting in the
execution or furtherance of a common purpose or conspiracy.
It is clear from the
summary of substantial facts referred to above that it is a central
allegation in the State case against
the applicant that the
commission of the murder was planned or premeditated. It also
appears from the indictment that the prosecution
relies upon the
existence of a common purpose between the accused persons to commit
the offences for which they have been charged.
Accordingly this
application, having regard to the provisions of schedule 6 falls to
be determined in accordance with the provisions
of
section 60
(11)
of the Act. This requires that exceptional circumstances should be
established which would warrant the applicant being
admitted to bail
pending finalisation of the criminal proceedings.
The phrase
“exceptional
circumstances”
has been the subject of a
considerable amount of judicial interpretation. It is in my view
unnecessary to attempt a detailed
examination of all of the cases
which seek to clarify the approach to be adopted in determining
whether exceptional circumstances
exist. It suffices in my view to
point to
dicta
in two
matters which reflect the scope of the enquiry and the manner in
which a court is called upon to deal with the requirements
of
section 60
(11) of the Act. The first of these is a dictum by Horn
AJ (as he then was) in
S v Jonas
1998 (2) SACR 673
(SE) where the learned Judge said (at 678 e –
i):
“
The term
‘exceptional circumstances’ is not defined. There can be
as many circumstances which are exceptional as the
term in essence
implies. An urgent serious medical operation necessitating the
accused’s absence is one that springs to
mind. A terminal
illness may be another. It would be futile to attempt to provide a
list of possibilities which would constitute
such exceptional
circumstances. To my mind, to incarcerate an innocent person for an
offence which he did not commit could also
be viewed as an
exceptional circumstance. Where a man is charged with the commission
of schedule 6 offence when everything points
to the fact that he
could not have committed the offence because, eg. he has a cast iron
alibi, this would likewise constitute
an exceptional circumstance.”
The second of these is a
dictum by Van Zyl J in
S v Petersen
2008 (2) SACR 355
(C)
where the learned Judge said at paragraph 55 and 56:
“
[55] On a meaning
and interpretation of ‘exceptional circumstances’ in this
context there have been wide-ranging opinions,
from which it appears
that it may be unwise to attempt a definition of this concept.
Generally speaking ‘exceptional’
is indicative of
something unusual, extraordinary, remarkable, peculiar or simply
different. There are, of course, varying degrees
of exceptionality,
unusualness, extraordinariness, remarkableness, peculiarity or
difference. This depends on their context and
on the particular
circumstances of the case under consideration.
[56] In the context of
section 60
(11) (a) the exceptionality of the circumstances must be
such as to persuade a court that it would be in the interests of
justice
to order the release of the accused person. This may, of
course, mean different things to different people, so that allowance
should be made for a certain measure of flexibility in the judicial
approach to the question. See
S v Mahomed
1999 (2) SACR 507
(C)
[1999] 4 All SA 533
at 513 f – 515 f.
In essence the
court will be exercising a value judgment in accordance with all the
relevant facts and circumstances and with reference
to all the
applicable legal criteria
.”
(Emphasis added).
In determining whether
exceptional circumstances are established or not, regard must, of
necessity, be given to the factors ordinarily
taken into account in
determining whether an accused person should be admitted to bail or
not. That includes the factors enumerated
in
section 60
(4) as read
with subsections (5), (6), (7), (8), (8 A) and (9) of the Act.
In his affidavit in
support of his application for bail the applicant states that he is
27 years old and that he ordinarily resides
with his parents in
Kirkwood and that he had been residing at that address for
approximately 20 years prior to his arrest. Although
he is not
married he does have three minor children, aged 8, 6 and 3 years of
age. Each of the children were born of different
mothers and are
presently living with their biological mothers. He passed Grade 11
and prior to his arrest was employed by Shellecke
Logistics as a
driver where he earned approximately R2,500.00 per month. He had
shortly prior to his arrest commenced his contract
employment at
Shellecke Logistics. Prior to this he was employed as a driver at
Ndlela Lab in Port Elizabeth for two and a half
years. He
undertakes in his affidavit to comply with any bail conditions that
may be imposed and in particular asserts that
he will not endanger
the safety of the public or of any person, that he will not commit
any offences and will not attempt to
evade his trial nor attempt to
influence or intimidate witnesses or conceal or destroy evidence
relating to the offence. He
further indicates that he intends to
plead not guilty to the charges against him although he does not
wish to disclose the basis
of his defence at this stage.
In the opposing
affidavit filed on behalf of the prosecution the investigating
officer, Luvuyo Plaaitjie, confirms the summary
of substantial facts
referred to above. He points out in this regard however that the
murder weapon allegedly used by the applicant
has not yet been
recovered and that this factor should weigh in considering whether
or not the applicant should be admitted to
bail, it being contended
that the weapon may yet be available to the applicant and that this
may pose some risk to witnesses
or the public insofar as the
potential commission of further offences is concerned.
In regard to the
strength of the State case against the applicant the prosecution
will rely on eye-witnesses to the incident who
are able to identify
the applicant as having been involved. He further states that the
incident was recorded on closed circuit
television video and that
the applicant is clearly and positively identified on the basis of
this video footage as being a perpetrator.
On the strength of these
assertions the investigating officer submits that the prosecution
has a very strong case against the
applicant and that given the very
serious nature of the offence and the minimum sentences applicable
in the event that he is
convicted, the applicant should not be
admitted to bail. It is further submitted that the personal
circumstances advanced by
the applicant do not constitute
exceptional circumstances which would warrant the applicant’s
admission to bail.
In argument before me it
was pointed out that the applicant’s co-accused have all been
admitted to bail. It was suggested
that the only reason the
applicant has not been admitted to bail is because he has not
previously applied for bail. I am not
able to make such a finding.
In this regard it should be noted that it is common cause that the
applicant has been in custody
since May 2010 shortly after the
commission of the offence and that he has been awaiting trial since
that date.
The fact that the
applicant is only now applying for bail, shortly before the
commencement of the trial in this matter does raise
some concern
about his motivation for so doing now. The applicant has been
represented in the lower court proceedings throughout
the period
during which he has been awaiting trial and he has appeared in court
on a number of occasions in that regard. His
co-accused made formal
bail applications and, so I am advised, have been admitted to bail.
In these circumstances one would
have expected that the applicant
himself would have made application to be released on bail.
Although he is not obliged to do
so some explanation for his failure
to have previously applied for bail would, in my view, provide this
court with some assurance
as to his commitment to stand trial and
would assist this court in determining whether there are exceptional
circumstances which
would warrant the applicant’s admission to
bail. In the absence of such explanation it is difficult to come to
the conclusion
that the bail application is not motivated by the
imminent trial date.
In my view the
particular circumstances advanced by the applicant to warrant his
admission to bail do not, properly and carefully
considered, and
having regard to all of the relevant circumstances applicable and
factors to be taken into account, constitute
exceptional
circumstances which would warrant the accused’s admission to
bail.
In the circumstances the
applicant’s application for bail is refused.
__________________________
G GOOSEN
JUDGE OF THE HIGH
COURT
APPEARANCES
:
FOR APPLICANT
: Ms
Coertzen, instructed by the Legal Aid Board
FOR RESPONDENT
: Mr
Sesar, instructed by the National Prosecuting Authority, Port
Elizabeth