About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2013
>>
[2013] ZAECPEHC 39
|
|
Njokweni v S (CC 16/13) [2013] ZAECPEHC 39 (7 August 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : PORT ELIZABETH
CASE NO. CC 16/13
In the matter between:
LUYANDA NJOKWENI
...................................................................
Applicant
and
THE STATE
....................................................................................
Respondent
BAIL JUDGMENT
GRIFFITHS, J.:
[1] The applicant in this matter is at present standing
trial along with six other accused in the High Court, Port Elizabeth.
He
is charged with robbery with aggravating circumstances, statutory
conspiracy to commit robbery with aggravating circumstances, unlawful
possession of firearms including a fully automatic firearm, unlawful
possession of ammunition, three counts of attempted murder,
six
counts of murder and three counts of theft. He has come before me
today on an application for bail, supported by an affidavit
deposed
to by himself.
[2] It is common cause that the appellant was arrested
on 28 November 2011 after he had handed himself over to the police.
He applied
for bail on 15 March 2012 in the magistrates’ court,
which application was refused. There appears to be a dispute as to
whether
or not this refusal was taken on appeal, the state contending
that it was withdrawn and the applicant contending that it was argued
and a judgment granted by Schoeman J. The trial commenced on 10 June
2013 and continued to 27 June 2013 when it was postponed to
17
February 2014 for continuation. According to an affidavit by the
investigating officer the reason for the postponement was not
that
the state was unprepared to proceed, but it was due to the fact that
defence counsel was unavailable to proceed beyond 27
June 2013 and,
due to other commitments, would only be available once again on 17
February 2014.
[3] It is trite, in view of the fact that there has been
a previous bail application, that the applicant is required to show
that
there have been changed circumstances since that application for
bail was refused. As I understand the application before me, and
as
argued by Mr. Price who appeared for the applicant, these changed
circumstances are, firstly, the lengthy time that the applicant
has
remained in custody coupled with the fact that, although the state
case has not yet been closed, the evidence of some three
or four
state witnesses have been completed. It is the submission of the
applicant, based on his affidavit, that where the magistrate
on an
analysis of the evidence then available to the state came to the
conclusion that the state's case was reasonably strong against
the
applicant, that situation has changed and, in his submission, the
state evidence is weak. In this regard the applicant has
stated that
in his view the evidence of the state is just strong enough to place
him on his defence.
[4] Whether or not there exist changed circumstances as
contended for, there is no doubt that the applicant still bears an
onus,
pursuant to the provisions of section 60 (11) (a) of the
Criminal Procedure Act (number 51 of 1937) to produce "
evidence
which satisfies the court that exceptional circumstances exist which
in the interests of justice permit his or her release;
".
This is so by virtue of the fact that, as is common cause, certain of
the charges which the applicant faces fall within
the purview of
schedule 6 to the Act. Furthermore, even if I conclude that there are
indeed new facts or changed circumstances,
it is clear that I am
obliged, in entertaining this application, to consider all the facts
before me both new and old and on that
basis to conclude whether or
not exceptional circumstances exist which justify the release of the
applicant on bail.
(S v Vermaas
1996 (1) SACR 528
(T); S v
Petersen
2008 (2) SACR 355
(C)).
Furthermore, in order to
successfully challenge the merits of the state’s case in bail
proceedings, the applicant must prove
on a balance of probability
that he will be acquitted.
(S v Botha 2002 (1) 222 (SCA) at 230h)
[5] With regard to the question of delay, there is
absolutely no evidence to gainsay the assertion by the investigating
officer
that it is not the state, but the defence, that has
precipitated the lengthy adjournment of the matter. Whilst I accept
that the
applicant personally could not have had any control over
this, this is not a case where, as in the matter of
Mooi v S
(unreported SCA case 162/12)
, the state was responsible for the
delay and failed to give any explanation therefor, or provide
sufficient evidence of its allegedly
strong case.
[6] I believe it is necessary to consider this question
of delay in conjunction with the question of the strength of the
state case.
The state case in this matter relies largely on the
evidence of an undercover agent, together with a number of video
recordings
which he made whilst so under cover. The agent and the
video recordings were to a degree supported by the evidence of the
investigating
officer himself. He testified as to the background
events leading up to the arrest of,
inter alia
, the applicant
as also the role that the undercover agent had played. Apparently the
applicant appears on a number of the video
recordings made by the
agent in which he incriminates himself with regard to the commission
of the robbery and the conspiracy charges.
Furthermore, it appears
from the evidence of the investigating officer that whilst there is
no evidence that the applicant was
in fact at the scene of the
robbery, he was indeed one of the main conspirators. It apparently
appears from one of the videos that
he, that is the applicant, was
present in the flat of the agent and "
can be clearly seen on
the video busy finalizing the execution of the robbery
".
[7] The applicant maintains in his affidavit that it is
common cause that he was not at the scene of the robbery, that he was
not
found in possession of any firearms or explosives that might be
used in the robbery and that he cannot be linked to any of the
vehicles apparently used by the robbers. He however concedes that the
videos do show him in discussion with others relating to the
robbery
but he states that that he was not on the scene when the conspiracy
was hatched or when the actual robbery took place.
Regarding the
videos taken by the agent, he states that they are "
very
poorly taken and are, in numerous places, extremely difficult to hear
or to properly see what is going on. In addition, these
videos are
being challenged in court on the basis of their not being authentic
and original and the provisions of section 222 of
the Criminal
Procedure Act will have to be applied by the court.
"
[8] What is notably absent from his affidavit is a clear
indication as to whether he clearly denies any involvement whatsoever
in
the matter or not. He sets about, as an accused person,
criticizing the evidence of the state but does not state that he was
indeed
not involved in the matter. Strangely enough, it appears from
the affidavit of the investigating officer that the defence advanced
by the applicant at the time of the initial bail application was as
follows and I quote:
“
The case put forward on behalf of the
Applicant is that he was approached to take part in the robbery and
attended various meetings
where the planning of the robbery took
place. He then withdrew from the conspiracy. He learned that the
robbery took place which
we know happened on the 8
th
of November 2011. During this time, he states, that he was in Durban.
On the 6
th
and the 8
th
he purchased clothing in Durban and produced receipts to corroborate
this. From this it is clear that he could not have been in
Port
Elizabeth on the 6
th
,
7
th
or
8
th
of
November 2011.”
[9] During the course of the trial and whilst the
undercover agent was under cross examination by the applicant’s
counsel,
the following occurred:
“
And he is going to say that that could not
be possible because on the 6
th
and the 7
th
in fact the 8
th
he was in Durban .
COURT
Sorry, the 6
th
, 7
th
and 8
th
or just the 8
th
?
MR NGQAKAYI
The 6
th
, M’Lord, the 7
th
and the 8
th
. Yes. He was in Durban. Sorry M’Lord, my
client wants to talk to me.
May I approach him ?
COURT
Certainly.
MR NGQAKAYI
Thank you M’Lord, the consultation needed
more time! No fine, we are going to proceed M’Lord. Now I just
want to withdraw,
it seems as if I didn’t take the instruction
properly on the date of the 6
th
and 7
th
and
8
th
, alright, he was not in Durban M’Lord. - - - You
are welcome.”
[10] Is clear from this that whilst the applicant
apparently advanced a defence during the course of the initial bail
application
to the effect that he was, at the time of the robbery, in
Durban purchasing clothes and was not present in Port Elizabeth, this
defence will not longer be advanced indicating a change in his
stance.
[11] In view of the conflict between the investigating
officer’s opinion with regard to the evidence presently on
record which
is in contradistinction to that of the applicant to the
effect that the evidence is not at all strong, I have difficulties
with
the notion that the applicant has established on a balance of
probabilities that he will not be convicted. This is compounded by
the fact that the applicant’s defence as punted during the
course of the initial bail application appears to have changed
and
the fact that the applicant has not placed me in his confidence as to
what his evidence in this matter will be.
[12] Because of these factors, I am of the view that it
cannot be said that the efluction of time and the commencement of the
trial
has resulted in a situation where it can be said that the
evidence for the state is any weaker than it was as at the time of
the
previous bail application. Indeed, as I see the situation, if
anything the evidence of the state against the applicant with regard
to the conspiracy and the robbery has been strengthened by the fact
that the applicant appears to contradict himself as to his
whereabouts as at the time of the robbery. Furthermore, the applicant
has advanced no reason at all as to why the undercover agent
might be
inclined to falsely implicate him.
[13] Although the circumstances of the applicant are, in
many regards, very similar to the appellant in the Mooi case to which
I
have already referred, and in which the SCA overturned the lower
court’s decision effectively refusing bail, there are distinct
differences between this and that case which are expressed in the
following statement by Snyders JA:
"The finding contended for on behalf of the appellant that there
is no case at all against him, is overly optimistic. The
evidence on
behalf of the State, at the very least, discloses a link between the
appellant, the Polo at the scene of the shoot-out
between the police
and the robbers, and the place where the appellant was arrested.
However, the delay in concluding its case,
the lack of explanation
for the delay and the absence of evidence of the alleged strong case,
undermines the assertion by the State
and the finding by the
magistrate that there is such a substantial case against the
appellant that it would serve as motivation
for him not to stand his
trial were he to be released on bail."
[14] In the circumstances, the applicant has not
persuaded me on a balance of probabilities that he will be acquitted.
Accordingly,
I do not regard the fact that the state case has
commenced and evidence led as leading to any changed circumstances
for the purposes
of bail.
[15] The applicant has stated under oath that he will
not evade trial in that he is resident in this area and has family
connections
here. Furthermore, he has indicated that he does not have
a passport and does not intend to apply for one. He has also denied
that
he will attempt cross borders into neighbouring countries and
has stated that, in any event, he does not have the financial
wherewithal
to do so. He has also indicated, which is apparently
common cause, that he indeed handed himself over to the investigating
officer
at the time of his arrest. In view of my earlier mentioned
finding that the state case has, if anything, strengthened since the
last bail application, I am of the view that this could well be a
factor which might persuade the applicant to act otherwise and
attempt to evade trial should he be granted bail. Furthermore, all
this information was available to the magistrate at the previous
bail
hearing.
[16] Even though there has been some delay since the
refusal of bail by the magistrates’ court, it does not seem to
me that
this is unduly lengthy especially when coupled with the fact
that such delay is not the fault of the state but due to the
unavailability
of defence counsel. In any event, I do not believe
that a delay of this order can bend to my finding that there is a
likelihood
that the applicant might evade trial owing to the strength
of the state case.
[17] Finally, Mr. Price has pointed to the fact that
both accused three and accused four have, since the trial was
adjourned, both
been granted bail. Apparently accused three was given
bail without opposition from the state, the reason being, according
to Mr.
Le Roux who appeared for the respondent in this matter, that
there was no evidence as to the fact that he was part of the
conspiracy
and planning of the events. I do not regard this as of
great relevance to this matter. As regards accused four, I have been
provided
with the judgment granting bail delivered by my sister Beshe
J from which it appears clearly that the state placed no evidence
before the court in opposition to the allegations made by accused
four. Accordingly, as she stated in her judgment, she was obliged
in
the absence of any evidence to the contrary to accept accused four's
evidence with regard to the strength of the state case.
His
application accordingly differs substantially from the present.
[18] I am accordingly of the opinion that no new facts
have been placed before me to persuade me that the applicant should
be granted
bail or that exceptional circumstances the purposes of
section 60(11) of the Act are present.
Accordingly, the application for bail is refused.
JUDGE OF THE HIGH COURT
HEARD ON : 07 AUGUST 2013
DELIVERED ON : 07 AUGUST 2013
COUNSEL FOR APPLICANT : Mr Price
INSTRUCTED BY : Sikiwe Attorneys
COUNSEL FOR RESPONDENT : Mr Le Roux
INSTRUCTED BY : Director of Public Prosecutions