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[2016] ZAECPEHC 27
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Ntengo v S (CC11/2016) [2016] ZAECPEHC 27 (13 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No.: CC11/2016
DATE:
13 JUNE 2016
In
the matter between:
MNCEDISI
NTENGO
..............................................................................................................
Applicant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Date
Heard: 8 June 2016
Date
Delivered: 13 June 2016
EKSTEEN
J:
[1]
The applicant seeks an order that he be
released on bail pending his trial. He is being arraigned in this
court on one count of
kidnapping and three counts of rape. The
applicant has appeared in this court and the matter has been
postponed from time to time.
He has not previously applied for bail
and his trial was already to have commenced in this court, however,
by virtue of the exigencies
of the court roll the matter has been
crowded out. Mr
Thysse
,
on behalf of the State, requests that I postpone the matter to 5
September 2016 for trial. It is, at least, in part this extended
delay in the trial proceedings which gives rise to the present
application. The State opposes the granting of bail.
[2]
In the indictment the State alleges that on
the night on 12 December 2014 to 13 December 2014 the applicant
abducted the complainant
(to whom I shall refer as “N.N”)
and during the course of the night forced her, first into an empty
shack, then to
an empty school classroom and ultimately again into a
shack in New Brighton and that he raped her at each of these venues,
per
vagina and/or anally. The offence referred to in counts 2,
3 and 4 (rape) are offences listed in Schedule 6 to the Criminal
Procedure Act 51 of 1977 (herein the “CPA”).
[3]
Section 60(11)(a) of the CPA provides:
“
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 a
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 effect hereof is that the
applicant bears an onus to adduce evidence which satisfies the court
on a preponderance of probability,
(a) that there are exceptional
circumstances and (b) which in the interests of justice justify the
release of the applicant on
bail. (See
S
v Botha and Another
2002 (1) SACR
222
(SCA) at para [20].)
[5]
The thrust of the argument presented to me
by Mr
Nel
,
who appeared on behalf of the applicant, is founded on the alleged
weakness of the State’s case. It is, I think, now
widely
accepted that the strength (or weakness) of the State’s case is
relevant to the existence of “exceptional circumstances”.
Where the applicant is able to prove that he will probably be
acquitted at the trial it would establish “exceptional
circumstances”
which justifies his release on bail. (See
S v Botha and Another
supra
para
[21];
S v Mauk
1999 (2) SACR 479
(W) at 488a-b;
S
v Mohammed
1999 (2) SACR 507
(C) at
517i-j;
S v Yanta
2000 (1) SACR 237
(TkH) at 243j; and
Woji
v Minister of Police
2015 (1) SACR
409
(SCA) at [3].)
[6]
In
S v
Mathebula
2010 (1) SACR 55
(SCA) at
59 para [12] Heher JA summarised the position thus:
“
[A]
State case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test. In
order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove on
a
balance of probability that he will be acquitted of the charge:
…. That is no mean task … [T]he applicant
who
chooses to follow that route must make his own way and not expect to
have it cleared before him. Thus it has been held that
until an
applicant has set up a
prima facie
case of the prosecution failing there is no call on the State to
rebut his evidence to that effect.”
[7]
The applicant in the present matter chose,
as he was entitled to do, not to testify. An affidavit by the
applicant was handed
up by Mr
Nel
together with certain annexures.
The applicant further chose, again as he was entitled to do, not to
reveal the basis of his
defence to the charges. Captain Harmse,
the acting officer commanding the Child Protection Sexual Offences
Unit of the SAPS
in Port Elizabeth testified on behalf of the State,
mainly by reference to the content of the docket.
[8]
The case put up by the applicant in respect
of the weakness of the State’s case is set out in paragraph 8
to the applicant’s
affidavit. The material portion
thereof proceeds thus:
“
A
reading of the papers served by the prosecution presents the
impression of confusion – by merely, for instance, comparing
the summary of essential facts and the charge sheet with the
complainant’s statement, questions arise about just where those
allegations meet the facts as sworn to by someone who had used
mandrax. … The lady’s affidavit is attached:
Annexure B
.
Her version of physical assault with a bottle is not clinically
supported: see
Annexure C
.
(The blood reflected there is not the complainant’s). She
does not refer to the events contained in paragraph
two of the
summary. This blows apart count two. Apart from her
sequence of steps in the alleged kidnapping differing
from the chain
of events summarised, she nowhere in her account goes near
Mkhwayi Village (count one). These combined
features hi-jack
the kidnapping – that is apart from the plainly inherent
implausibility of the tale. And once the
abduction aborts –
for being lost via detour – so does non-consensual sex, since
the latter assumes as premise the
former.”
[9]
I accept for present purposes, as submitted
by Mr
Nel
,
that there are certain discrepancies between the statement of N.N and
the summary of essential facts. This court, however,
cannot
decide issues of credibility of witnesses in an application for
bail. That is a matter for the trial court which will
have the
opportunity to observe the witnesses and to consider any explanations
given for such discrepancies. I think that
this is precisely
what Heher JA had in mind when noting that a case supposedly frail in
advance may yet sustain proof beyond reasonable
doubt when put to the
test (see
S v Mathebula
supra
).
Moreover, as Mr
Thysse
on behalf of the State correctly points out, the State is not bound
by the contents of the summary of essential facts (see section
144(3)
of the CPA).
[10]
The applicant contends that N.N’s
version of an assault is not clinically supported. In
substantiation hereof the applicant
annexes, selectively, only the
first page of the medico-legal report prepared by Dr Meslane who
examined N.N at 17h00 on 13 December
2014. Dr Meslane found no
physically injury and concluded that N.N had not been physically
assaulted.
[11]
Dr Meslane does, however, record that she
found N.N to be significantly traumatised. Moreover it
transpires from the evidence
of Captain Harmse that the remainder of
the medico-legal report, which was omitted by the applicant, reveals
that the gynaecological
and anal examination conducted by Dr Meslane
led her to conclude that N.N had been penetrated both anally and per
vagina.
If that evidence is led and accepted then I think that
it offers strong corroboration for material portions of N.N’s
version.
[12]
Mr
Nel
argues, however, that the State still cannot prove that it was the
applicant who had intercourse with N.N, and if it was, then
consensual intercourse cannot be excluded. In respect of the
first issue Captain Harmse testified that Dr Meslane will
testify that she obtained certain swabs from the genitals of N.N and
took possession of a grey boxer short worn by her. These
were
all packed and sealed in a sexual assault evidence collection kit and
were subsequently tested and analysed. The applicant
was
positively linked by DNA to these exhibits. This evidence is
attacked under cross-examination and Mr
Nel
contends that “no certificate of calibration” and “no
certificate of DNA extraction” is contained in the
docket.
He argues therefore that the State cannot prove the chain which gave
rise to the analysis linking the applicant to
the biological
exhibits. During his argument reliance was focused on the
absence of proof of the extraction of DNA from the
exhibits. In
this regard Mr
Nel
found support in the recent judgment of
Tshantsani
v S
(CA225/20114) [2016] ZAECGHC3
(16 February 2014). In
Tshantsani’s
matter the parties agreed that the sexual assault evidence collection
kit was properly sealed by the relevant police official and
was
received at the Forensic Laboratory in Plattekloof still sealed,
where the seal was broken by Lieutenant Colonel Charlene Otto
for
purposes of analysis. An affidavit by Lieutenant Colonel Otto
in terms of section 212(4) of the CPA recorded that Lieutenant
Colonel Otto, the chief forensic analyst of the Forensic Science
Laboratory, concluded from her analysis that the DNA on the panty
of
the complainant had matched the DNA of the accused in the controlled
blood sample. The accused admitted the proper handling
of the kit
until it reached the Forensic Science Laboratory where the seal was
broken by Lieutenant Colonel Otto for purposes of
analysis. In
an appeal the only point raised was that counsel and the trial judge
had misconstrued Otto’s affidavit
in as much as Otto never
stated that she was the person who had broken the seal and had
extracted the DNA from the complainant’s
panty and from the
appellant’s blood sample when the panty and sample arrived at
the Forensic Science Laboratory. The
point was upheld on
appeal, however, the judges declined to finalise the matter and,
after setting aside the conviction and sentence
ordered that the
matter be remitted to the trial court in order to hear evidence which
may be adduced by the State and/or the defence
with regard to the
handling of the sexual assault collection kit after its arrival at
the Forensic Science Laboratory in Plattekloof.
[13]
In response to the argument Mr
Thysse
handed up a series of affidavits
attested to in terms of the provisions of section 212 of the CPA
dealing with the handling of the
exhibits and the separation of
portions of the samples prior to their ultimate receipt by one
Lieutenant Boltman for purposes of
analysis. On a perusal of
these affidavits it seems to me, and I make no finding in this
regard, that there may be merit
in Mr
Nel’s
submission that they do not cover the entire chain in the process.
Further evidence may be required. It does not follow,
however,
on a balance of probability, that the applicant will therefore be
acquitted. It is clear from the section 212 affidavits
before
me that the entire chain of required DNA processes was in fact
completed and DNA was in fact extracted. This is apparent
from
the fact that the results of the process was evaluated and analysed.
In the event that any of the processes were preformed
or overseen by
another person, who has not already attested to a section 212
affidavit then there is every reason to believe that
such person can
readily be called to testify to the process. Similarly, if the
calibration of the machinery is disputed the
relevant documentation
could be obtained. The applicant has certainly not put up any
evidence which could, on a balance of
probability, lead to the
conclusion that such evidence is not available and that he will
therefore be acquitted.
[14]
Even if I err in this regard it still does
not follow that the State will probably be unable to prove that it
was the applicant
who had intercourse with N.N. N.N is related
to the applicant and she knows him well. She says that she had
been with
him at a tavern earlier that evening and that it was the
applicant that had intercourse with her. The State therefore
has
direct evidence as to the identity of the perpetrator. Of
course it is conceivable that the entire charge is a sinister plot
to
falsely implicate the applicant in these offences. That,
however, is a matter that can only be judged when the State’s
case has been put to the test. On the evidence before me,
however, I consider that Mr
Thysse
is correct where he submits that,
prima
facie, the State has a strong case in respect of this issue.
[15]
That brings me to the second leg of the
argument, namely, that the State does not have evidence to exclude
consensual intercourse.
This issue may easily be dealt with.
N.N states that she was raped. Her evidence is direct evidence,
the credibility
of which can only be judged once it has been tested
under cross-examination and the trial court has had occasion to
consider the
credibility of the witnesses before it, and, of course,
the applicant, if he chooses to testify.
[16]
The applicant raises certain criticisms of
the complainant’s version which he contends shows that he is
likely to be acquitted
on counts 1 (kidnapping) and count 2 (the
first rape charge). He then concludes: “These
combined features hi-jack
the kidnapping – that is apart from
the plainly inherent implausibility of the tale. And once the
abduction aborts
– for being lost via detour – so does
non-consensual sex, since the latter assumes as premise the former”.
I do not agree. Even if N.N had accompanied the applicant of
her own volition to the school classroom (count 3) and to Mhlaba
Street (count 4) it does not follow as a matter of logic that she
there consented to intercourse. In all the circumstances
I
think that the applicant falls far short of establishing that he will
“probably” be acquitted. On the contrary,
I
consider that,
prima
facie, the State has a strong case against him.
[17]
The applicant raises two further issues in
support of his application. Firstly, he contends that he has
been advised by the
Legal Aid Board that his case would merely be a
standby case on 5 September 2016 with every prospect for further
delay until year
end. This he points out, will entail a more
than two year wait from the time of his arrest. I have already
recorded
earlier that I am requested by Mr
Thysse
to postpone the matter to 5 September 2016 for trial. Mr
Thysse
has advised the court that he has been approached to proceed with the
prosecution on 5 September 2016. In these circumstances,
given the
assurance by the prosecution, it must be accepted for purposes of
this judgment that the prosecution will proceed on
5 September 2016.
It accordingly involves a delay of a mere three months from the date
hereof.
[18]
Finally, the applicant states:
“
[H]having
gone through the case docket as it stands, there are certain persons
that I might well want to call in order to refute
the allegations of
kidnapping and rape. I would have to be at liberty to seek them
out, however, and assess their possible
participation as defence
witnesses if I were to have them summonsed to the stand.
Unfortunately, the Legal Aid Board does
not presume to have the means
to investigate or locate them and itself depends on the good offices
of the SAPS Investigating Officer
of this case. Therein lies
the rub and a direct conflict of interests which stares one in the
face.
I
have had bad treatment meted out to me by the case Investigating
Officer: on the 14th December 2014, in the reception area
of
the police station after my arrest, the Investigating Officer told me
that I am a rapist, she will lock me up and throw the
key into the
sea. She slapped my face and said I must unzip my shorts. She
took my private part into her right hand
and swung it from side to
side, saying that with his dirty p… I rape people. This
was humiliating. It happened
where other police officers were
about. They did not intercede. She also wrote out a
statement and told me to sign.
She was in a hurry to go and
watch sport and did not explain my rights. Since then, on the
way to DNA testing, she said that
if I pleaded guilty she would speak
for me for a lighter sentence.
On
the 18th December, 2014, while in prison, the SAPS
Taakmag,
busy with
Operation Vala
,
herded all of us out of the communal cell. With no cause
therefor I was beaten with a truncheon on the ribs by an officer.
I still sport the egg-like protrusion from my ribcage, plain for all
to see. I tried to lay a charge but (has) had no follow-through
from the Correctional Services or SAPS authorities these past six
months. I have had to submit the papers to the Legal Aid
in the
hope that they will come to see me this week. Hopefully, should
I obtain bail, I would be able to pursue a criminal
assault case
against the perpetrator with more tangible result. To summarize
the preceding three paragraphs: my preparation
would suffer
substantially in practical terms were I to be inside in
circumstances no conducive for the reasons stated.
I do not
trust our police (do beg pardon).” (
Sic
)
[19]
It need hardly be stated that no detainee
is expected to endure the kind of criminal treatment of which the
applicant complains.
Clearly the authorities are required to
accept his complaints and to investigate the alleged crimes with the
same enthusiasm and
vigour with which any other serious crime is
investigated. He records, however, that he has now received the
assistance of
the Legal Aid Board in this regard and I have no doubt
that these matters will now receive the attention which they
deserve.
[20]
The applicant raises his experiences whilst
in incarceration in a different context, however, he contends that he
is prejudiced
in the preparation for his trial by virtue of the
strained relationship which he perceives to exist between himself and
the authorities
and accordingly he has no confidence that they will
assist in tracing witnesses whom he may wish to call at the trial.
In
this regard Mr
Thysse
has tendered the assistance of the Director Public Prosecutions
office to intervene on his behalf and to make every endeavour to
trace witnesses identified by the applicant through the services of
the South African Police. I record that the investigating
officer of whom the applicant complains is no longer involved in the
matter and now serves as a court orderly. A new investigating
officer has been appointed. In these circumstances I do not
think that the limited prejudice which the applicant would suffer
in
the preparation for his trial can outweigh the interests of justice
in this matter. (Compare section 60(4) and (9) of the CPA.)
[21]
Section 60(4)(a) of the CPA provides that:
“
The
interests of justice do not permit the release from detention of an
accused …
(a)
Where there is the likelihood that the
accused, if he or she were released on bail, will commit a Schedule 1
offence.”
[22]
Section 60(11B)(a) provides that:
“
In
bail proceedings the accused, or his or her legal adviser, is
compelled to inform the court whether-
(i)
The accused has previously been convicted of any offence; and
(ii)
…. “
[23]
In the present instance all that is
provided in this regard in the application on behalf of the applicant
is the following:
“
About
adhering to bail conditions: I admit I am no first timer but I
have no priors for kidnapping nor rape (or personal violence
of any
sort since 17 years ago).”
[24]
In truth it transpires from the evidence of
Captain Harmse that the applicant has a string of previous
convictions. Some of
these convictions go back a considerable
period of time and I do not consider that they should have a material
influence on the
present application. What are, however,
material are the more recent convictions. The applicant was
convicted of housebreaking
in 2008 and sentenced to 5 years
imprisonment. In the same year he was convicted and sentenced
for the unlawful possession
of ammunition and sentenced to a period
of 6 months imprisonment. On 27 July 2012 the applicant was
convicted of theft and
sentenced to 4 years imprisonment of which 1
year was conditionally suspended. Also in 2012 the applicant
was convicted of
the possession of a prohibited drug and was
sentenced to a fine of R300 or 3 months imprisonment conditionally
suspended in its
entirety. Upon specific enquiry during the
application the applicant acknowledges that at the time of the
alleged commission
of the crimes presently under consideration he was
on parole, having been released early from custody, prior to the
expiry of his
sentence for theft.
[25]
All of the above offences constitute
offences listed in Schedule 1 of the CPA. They have a material
bearing on this application
and they were not disclosed to the
court. Mr
Nel
was unable to provide any reasonable explanation for the failure.
He seeks to explain that they were not disclosed because
the
applicant knew that the State would reveal his previous convictions.
In view of the statutory provisions which I have
referred to earlier
and the significance of the convictions to the merit of the
application the explanation is clearly not satisfactory.
[26]
I have dealt earlier with the onus which
rests upon an applicant in bail proceedings and I am unable to find
that the applicant
has placed any exceptional circumstances before me
nor that he has discharged the onus of establishing that it is not
likely that
he would commit a Schedule 1 offence if he were released
on bail.
[27]
In all the circumstances:
1.
The application is dismissed.
2.
The case is postponed to 5 September 2016
for trial.
3.
The accused (applicant) is to remain in
custody.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For Applicant:
Adv CHO Nel SC
Instructed by the
Justice Centre, Port Elizabeth
For
Respondent: Adv J Thysse
Instructed
by the National Director of Public Prosecutions, Port Elizabeth