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[2016] ZAECPEHC 49
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Holland v S (CC11/2016) [2016] ZAECPEHC 49 (2 September 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
EASTERN CAPE
DIVISION, PORT EIZABETH
CASE
NO: CC 11/2016
Date
heard: 1 September 2016
Date
delivered: 2 September 2016
In the matter
between
PHUMELA
ELIZABETH
HOLLAND
Applicant
And
THE
STATE
Respondent
JUDGMENT ON
BAIL APPLICATION
GOOSEN, J.
1.
This
is a substantive application for bail brought by the applicant, who
is accused 2 in the matter presently pending before this
court. The
applicant is one of six accused charged with several offences
including conspiracy to commit murder; two counts of murder;
unlawful
possession of a firearm and unlawful possession of ammunition.
2.
The
relevant portion of the indictment, insofar as the charges against
the applicant is concerned, alleges that during 2014 and
while
accused 6 (Mawethu Khaka) was in custody, he telephonically contacted
a certain Mapheta, Accused 5 and Accused 3 to request
them to kill a
witness. It is alleged that Accused 3 solicited the assistance of
Accused 1. It is further alleged that Accused
6 telephonically
contacted his then girlfriend, Accused 2, who is the applicant, to
obtain a vehicle to be used to transport the
conspirators to
Kwanobuhle in order to execute the witness. According to the
indictment the applicant approached Sindiswa Bembe
to request her to
rent a motor vehicle on the pretext that applicant’s mother
needed the vehicle to travel to a funeral.
Once the vehicle was
rented the applicant is alleged to have provided it to her brother,
Accused 3. It is alleged the vehicle was
used on 31 March 2014 when
the witness, Madlakane, and another woman were shot and killed.
3.
The
applicant previously made a substantive application for bail which
the state opposed. Bail was denied. It appears that subsequent
to
this the applicant again approached the magistrate’s court for
bail, alleging the existence of new facts. Bail was again
refused and
a still further application, also based on the existence of the
alleged new facts was brought, and also refused. The
applicant then
appealed against that finding. The bail appeal was heard by Bloem J,
who delivered judgment dismissing the appeal
on 11 December 2015.
4.
I
was referred by both counsel to the content of Bloem J’s
judgment as containing a summary of facts relevant to the nature
of
the state case as well as the personal circumstances of the
applicant.
5.
The
applicant now brings a further bail application in which it is
alleged that new facts fall to be taken into account. Before
dealing
with those alleged new facts it is worth noting that the application
was prosecuted on the basis of an affidavit deposed
to by the
applicant. Annexed to this affidavit were several documents which
included Bloem J’s judgment aforementioned; a
judgment by
Revelas J in a bail application brought by Accused 3 in which bail
was granted; certain extracts of the previous bail
application of the
applicant before the magistrate, as well as what appears to be the
complete investigation docket which has been
made available to the
applicant. The state opposed the application. In this regard the
evidence of detective warrant officer Arnolds,
who is the
investigating officer, was presented.
6.
The
affidavit filed by the applicant founds the applicants case for bail
upon what was stated to be new facts not previously considered
by the
court dealing with bail. These, it was submitted, are the following:
(a) That the applicant has
been in custody since 2014, a period now in excess of two years.
(b) That Accused 3 in the
case was admitted to bail pursuant to a judgment by Revelas J in
which the learned judge made an adverse
finding regarding Captain
Mayi, the erstwhile investigating officer in the matter. The finding
relates to Mayi having misled the
magistrate in Accused 3’s
bail application.
(c) That the state witness
Sindiswa Bembe, whom it is alleged will have provided evidence
implicating the applicant in the hiring
of the motor vehicle which
was allegedly used in the commission of the offences, was apparently
shot and killed in May 2016, apparently
in a hijacking.
(d) That a further state
witness Luyanda Mafani, who was employed by the car rental company
and who would also provide evidence
relating to the applicant’s
involvement in the rental of the vehicle, also recently died. I
should mention that this ‘fact’
was presented by the
applicant on the basis of hearsay, she having heard that this is so.
The investigating officer Arnolds had
no knowledge of this, had not
made enquiries and therefore could not dispute the allegation.
7.
These then are the new facts upon which the
applicant relies. In argument, Mr Nel, who appeared for the
applicant, sought to suggest
that these new facts cast a new light on
the alleged strength of the state’s case against the applicant.
When the ‘weakening’
of the case is considered in
conjunction with the length of time that the applicant has spent in
custody and when regard is taken
of the fact that the trial is
scheduled to proceed in the fourth term of this year, it was argued,
this court should find that
the applicant is entitled to bail.
8.
Mr
Nel sought to place great weight upon the finding by Revelas J, that
Mayi misled the court hearing the bail application in respect
of
Accused 3. This finding suggested, so it was argued, that the entire
case to be presented by the prosecution was ‘tainted’.
9.
It
is common cause that the applicant, in order to be admitted to bail,
must establish that there are exceptional circumstances
present which
would warrant her release on bail. Proof by an accused person that he
will probably be acquitted at his trial may
constitute such
“exceptional circumstances” (
S v
Botha and another
2002 (1) SACR 222
(SCA) at
par [21]).
10.
In
S v Peterson
2008 (2)
SACR 355
(C) at par [57]it was held that:
When,
as in the present case, the accused relies on new facts which have
come to the fore since the first, or previous, bail application,
the
curt must be satisfied, firstly, that such facts are indeed new and,
secondly, that they are relevant for purposes of the new
bail
application. They must not constitute simply a reshuffling of old
evidence or an embroidering upon it. See
S
v De Villiers
1996
(2) SACR 122
(T) at 126e-f. The purpose of adducing new facts is not
to address problems encountered in the previous application or to
fill
gaps in the previously presented evidence.
11.
In
order for this court to grant bail it must be shown that the new
facts relied upon are relevant to determining the strength of
the
state’s case. It must also be shown that the consequence is
that the state case is exceptionally weak and that, on a
balance of
probabilities, the applicant will be acquitted (
S
v Mazibuko and another
2010 (1) SACR 433
(KZP) at par [23]).
12.
The
length of time that a person is in custody awaiting trial and the
reason for the delay are factors to be taken into account
in the
overall assessment as to whether it is in the interests of justice
that the accused person be released on bail. The length
of detention
is not, properly considered, a new fact which warrants
reconsideration of the order as to bail by a court re-considering
a
bail application. In this instance the fact of the detention and the
fact that the trial has been subject to various delays,
and is only
likely to proceed during the fourth term of this year, fall to be
considered in the light of the broader attack upon
strength of the
state case which the applicant is advanced in this application. In
the event that it is found that the state case
is established to be
exceptionally weak and that there is a balance of probability which
favours a finding that the applicant is
likely to be acquitted, then
in that event the length of detention will weigh heavily in favour of
an order releasing the applicant
on bail. The converse is equally
true. In the event that it is found that the applicant has not
discharged the onus which rests
upon her to establish that the
balance of probabilities favours a finding that she is likely to be
acquitted at trial, then period
of detention will weigh less heavily
in favour of admitting the applicant to bail.
13.
The
adverse finding made by Revelas J regarding Mayi is not, in my view,
to be considered as a new fact. Revelas J’s finding
was based
on the assessment of Mayi’s assertion that independent
witnesses implicated Accused 3 whereas, once the docket
had been
disclosed, it was established that he was only implicated in
statements made by co-accused persons. Revelas J accordingly
assessed
the evidence against Accused 3 on that basis, and found that the case
against him was weak. Revelas J went on to comment
on an aspect of
Mayi’s evidence, where he referred to independent witnesses and
found that he had not disclosed that the
witnesses were co-accused
and that he ought to have done so.
14.
Mr
Nel sought to argue that the same could be found in relation to his
testimony regarding the case against the applicant. I disagree.
I was
only provided with extracts of the record in the bail proceedings in
which Mayi had testified. Those extracts of the record
reflect that
Mayi refers to the nature of the evidence against the applicant in
the context of reference to the affidavits of witnesses.
At that
stage the docket contained statements made by both Sindiswa Bembe and
Luyand Mafani, the two witnesses who have since died.
Mayi’s
evidence at the bail proceedings, therefore, that he was in
possession of affidavits to support the state’s
case is
accordingly correct and not subject to the criticism directed at him
by Revelas J in relation to other evidence he tendered.
15.
Mr
Nel, in addition, sought to suggest that because there had been an
adverse finding against Mayi the entire prosecution case was
“tainted” by reason of the fact that he was, at that
stage, the investigating officer who was directing the investigation
and prosecution of the accused. There is, in my view, no basis for
such a submission.
16.
Insofar as the attack on the strength of the
state case is concerned, in the light of the death of the two
witnesses, Mr Nel submitted
that it was “weakened” as a
result. This was so, he argued because the evidence that the two
witnesses could have given
can now only be presented by relying upon
s 3
of the
Law of Evidence Amendment Act, 45 of 1988
, in terms of
which hearsay evidence may be admitted at the trial.
17.
The
fact that the evidence may only be admitted in terms of the exception
to the hearsay rule. Indeed, points to a constraint on
the production
and admission of the evidence. There is however no absolute bar to
the production of the evidence. On the contrary,
the provision of the
Act specifically countenances a situation such as that which now
attains. Whether the evidence is to be admitted
is of course a
question to be determined by the trial court, having regard to the
interest of justice.
18.
For
present purposes I am required to decide whether the state case
against the applicant is exceptionally weak. That requires a
decision
in regard to the probabilities of admission of evidence by the trial
court. There is however nothing in the evidence before
me, which
suggests that the probabilities weigh in favour of a finding that the
trial court would not receive the evidence. The
legal principles
which govern the application of the Act are well established as are
the circumstances in which it may be relied
upon. Mr Nel did not seek
to suggest that it was improbable that the evidence would be
received. I must proceed on the basis that
the evidence relating to
the applicant’s involvement in the hire of the motor vehicle is
still available to the state, notwithstanding
the death of the two
witnesses. That is so because the docket contains their detailed
statements as well as documents relating
to the transaction. The
assessment of the strength of the state case must therefore proceed
upon the basis that such evidence is
available and not on the basis
of the probability of the reception of such evidence in the light of
the death of the witnesses.
This is not an instance, as Revelas J
found in relation to Accused 3 that the only evidence is that of a
co-accused implicating
an applicant for bail, where the legal
principles are such as would justify a finding that the admissibility
of such evidence is
improbable.
19.
In
the circumstances, the evidence before me establishes the existence
and availability of precisely the same evidence that was
evaluated
during the previous bail application and which Bloem J found, on
appeal, to constitute a strong case against the applicant.
There is
no basis for me to find that the “new facts” have altered
the basis for such finding.
20.
It
follows that the new facts adverted to by the applicant and upon
which this application is founded, including the reliance upon
the
period of detention, do not justify a finding that the applicant has
discharged the onus which rests upon her. In the result
the
application for bail cannot succeed.
21.
I
make the following order:
The application is
dismissed.
__________________________
G. GOOSEN
JUDGE OF THE
HIGH COURT