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[2018] ZAECPEHC 18
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Wardle v S (CA&R5/2018) [2018] ZAECPEHC 18 (10 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: CA&R
5/2018
Date heard: 3 May
2018
Date
delivered: 10 May 2018
In
the matter between
BRENDA
WARDLE Appellant
And
THE
STATE Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
appellant faces charges of fraud, alternatively theft, further
alternatively contravention of s 83 of the Attorneys Act, 73
of 1979.
The amount involved exceeds R500 000. She is presently incarcerated
pending trial. The appellant applied for bail and
on 10 July 2017 the
application for bail was refused. No appeal was directed against the
refusal of bail. In November 2017 the
appellant brought a further
bail application on new facts. On 29 November 2017 the application
for bail on new facts was refused.
The appellant now appeals against
this finding.
[2]
The
appellant was unrepresented. A perusal of the record indicates that
the appellant has steadfastly insisted throughout the proceedings
in
the court below that she would represent herself. It appears from the
record that the appellant holds both a bachelor and master
of laws
degree and that she is presently engaged in doctoral studies. She has
styled herself as a legal analyst. Thus, although
she has represented
herself as a lay person, she is anything but a lay person without
knowledge of law and legal procedure.
[3]
The
prosecution of this appeal has suffered from some delays. It appears
that these arose during the preparation of the record and
that on a
previous occasion when the matter was enrolled for hearing the record
was incomplete. That has now been corrected although
it should be
stated that the voluminous record, comprising six volumes, is poorly
organised and presented.
[4]
It
is common cause that the provisions of Schedule 5 of the
Criminal
Procedure Act, 51 of 1977
, find application. Accordingly the
appellant bore the
onus
to establish that it is in the interests of justice that she be
released on bail.
[5]
It
is appropriate to set out briefly the background to the present
appeal. The facts, set out below, are essentially common cause.
They
are in any event set out as findings made by the magistrate in the
judgment in the first bail application. Those findings
are not
subject to appeal.
[6]
The
appellant first appeared in the Regional Court on the charges
preferred against her on 12 May 2014. She was then released on
bail
which was set in an amount of R3000. The trial was scheduled to
commence on 20 April 2015. On that date the appellant did
not appear
and a warrant of arrest was issued which was stayed until 28 April
2015. On 28 April 2015 the appellant appeared and
presented a medical
certificate explaining her previous absence. The court accepted the
certificate and the warrant was cancelled.
On 2 June 2015 the
appellant again appeared in court. On this occasion she was
represented. A postponement was sought by the appellant
to 19 June
2015.
[7]
On
19 June 2015 the appellant again did not appear in court. A warrant
was issued which was stayed until 3 July 2015. The appellant
did not
appear on 3 July and the court ordered that the warrant be executed.
On 17 July 2015 the appellant’s bail was estreated.
[8]
On
28 July 2015 the appellant appeared in court of her own accord. She
provided a medical certificate explaining her previous absence
from
court. The magistrate cancelled the warrant and released the
appellant on warning. The case was postponed to 28 August 2015
to
enable a legal representative to be appointed. It was further
postponed on that date at the request of the appellant. On 11
September 2015 Adv Kriel appeared on behalf of the appellant. The
case was postponed for the trial to commence on 29 March 2016.
[9]
On
29 March 2016 the appellant failed to appear. Adv Kriel also did not
appear. It appears that the appellant had advised the investigating
officer that she was ill due to high blood pressure. The magistrate
issued a warrant for the arrest of the appellant.
[10]
Some
fifteen months later the appellant was arrested in East London. Her
appearance in court in June 2017 when she was remanded
in custody
gave rise to the bail applications referred to hereinabove.
[11]
As
indicated above the appellant launched a bail application in June
2017. She filed a set of affidavits in support of her application.
The state opposed bail and presented the evidence of Warrant Officer
Horak, the investigating officer in the case. I shall hereunder
deal
with the basis upon which the bail application was brought and the
reasoning of the magistrate in refusing bail. Following
the
magistrate’s refusal of bail the appellant indicated that she
would consider an appeal or a further application for bail
based upon
new facts. Arrangements were then made to prepare the transcript of
the bail proceedings and to arrange a provisional
date for trial. It
is not necessary to recount the lengthy exchanges that appear from
the record. It suffices to state that no
appeal was launched against
the magistrate’s refusal of bail. Instead a further bail
application was commenced.
[12]
This
further bail application proceeded on what the appellant contended
are ‘new facts’. It was brought on affidavits
which the
appellant read into the record. In opposing the application the state
led the evidence of Horak, the investigating officer.
[13]
The
appellant submitted lengthy heads of argument outlining the basis
upon which the appeal was prosecuted. The heads of argument
consisted
of, inter alia, a section setting out the ‘key issues to be
decided’; the ‘background facts’;
a discussion of
‘bail proceedings and the incidence of the onus’; and an
outline of ‘facts on record which point
to the indisputable
conclusion that the interests of justice (broadly speaking) were not
served.
[14]
I
do not intend to address each and every submission made by the
appellant in her heads of argument. It was conceded by her, during
argument that in relation to the bail application brought on new
facts the
onus
rested upon her to establish that she should, in the interests of
justice, be released on bail. The broad and wide ranging discursive
treatment of the incidence of the
onus
and the nature of bail proceedings accordingly provided little
assistance in the determination of the matter. It was also accepted
by the appellant that her formulation of the nature of the
proceedings on appeal as being both an appeal and a review was
incorrect.
What was to be considered in the appeal was whether the
magistrate, in considering the new application, had wrongly exercised
the
discretion vested in him.
[15]
In
submitting that the magistrate was wrong not to release her on bail
the appellant argued that the magistrate had failed to apply
his mind
to the matter. In support of this it was argued that the new facts
were either not considered or inadequately considered
by the
magistrate. These new facts related to the conditions of her
detention and the effect thereof on her ability to prepare
for her
trial; the nature and extent of the evidence indicating that she has
a defence to the charges; and the extensive related
litigation
initiated by the appellant to vindicate her rights. The litigation
referred to concerns,
inter
alia
,
an application launched by the appellant in the South Gauteng High
Court to set aside certain warrants of arrest. There is also
litigation to obtain prohibitory and mandatory interdicts against the
Department of Correctional Services. Reference was also made
in
argument to an application for direct access to the Constitutional
Court, although it does not appear that this featured in
the bail
application.
[16]
Before
turning to consideration of the judgment of the magistrate, it is
necessary to deal briefly with an issue raised as an ‘issue
to
be decided’ in the appellants heads of argument. Appellant
contended that the initial bail application was conducted according
to an incorrect procedure. The argument was premised on
s 72
of the
Criminal Procedure Act. As
I understood the argument it was that the
section, which provides for a summary enquiry to be conducted into
the reasons for the
non-appearance of an accused person, was not
complied with. Instead, so it was contended, a bail application was
conducted.
[17]
The
point is without merit.
Section 72(4)
indeed requires an enquiry to
be conducted in relation to the failure of an accused person to
appear. The purpose of such enquiry
is to determine whether the
punitive provisions which apply to such non-appearance are to be
imposed. It has nothing to do with
bail. The appellant’s
appearance before the magistrate arose in consequence of the
execution of a warrant of arrest. She
was accordingly to be held and
remanded in custody unless she was released on bail.
Section 60
provides that an accused person remanded in custody be afforded a
reasonable opportunity to apply for bail. This is what occurred.
The
appellant was indeed afforded an opportunity to make application for
bail in accordance with the provisions of
s 60.
[18]
Section
65(4)
of the
Criminal Procedure Act provides
that a judge hearing a
bail appeal ‘shall not set aside the decision against which the
appeal is brought’, unless he
or she ‘is satisfied that
the decision was wrong’.
[19]
In
S
v Barber
1979 (4) SA 218
(D)
Hefer J said (at 220 E – H.):
It
is well-known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application. This Court has to be persuaded that the magistrate
exercised the discretion which he has wrongly. Accordingly, although
this Court may have a different view, it should not substitute its
own review for that of the magistrate because that would be
an unfair
interference with the magistrate’s exercise of its discretion.
I think it should be in should be stressed that,
no matter what this
Court’s own views are, the real question is whether it can be
said that the magistrate who had the discretion
to grant bail but
exercised that discretion wrongly.
[20]
In
order to interfere on appeal it is accordingly necessary to find that
the magistrate misdirected himself or herself in some material
way in
relation to either fact or law (see
S
v Ali
2011 (1) SACR 34
(E)
at para 14; cf. also
S
v M
2007 (2) SACR 133
(E)
).
[21]
It
is appropriate to begin with the manner in which the court
a
quo
approached the adjudication of the appellant’s application. In
this regard court’s judgment reflects a consideration
of the
evidence as a whole, including that which served before it at the
first hearing and which forms the basis of the first judgment.
Although the magistrate stated that the ‘new’ evidence
did not encompass facts which had not been considered before,
he
nevertheless addressed the ‘new’ evidence which was
presented. For this reason he, quite correctly, re-appraised
the
evidence as a whole in order to determine whether the appellant had
established that the interests of justice required her
release on
bail.
[22]
The
appellant’s reliance on the pending High Court applications to
set aside the warrants issued in relation to criminal matters
pending
against her in Gauteng and the litigation against the Department of
Correctional Services does not establish a new set
of facts which
bear upon the exercise of the magistrate’s discretion. The fact
that she is pursuing an application to challenge
the lawfulness of
certain warrants and the fact that she is pursuing litigation to
protect or enforce her rights as against Correctional
Services can
have no relevance to the question as to whether she is likely to
evade trial. 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
court 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.
(Emphasis
added)
[23]
A
reading of both judgments in the bail proceedings indicates that the
magistrate was alive to the appellant’s claim that
the
conditions of detention were adverse to her health and that they
affected her proper preparation for trial. The magistrate
concluded
that she is receiving appropriate medical treatment for her
hypertension and that she has access to proper medical care.
The
strictures of incarceration did not prevent her from conducting
litigation nor preclude her access to legal resources which
had been
made available to her.
[1]
In
these findings the magistrate was undoubtedly correct.
[24]
The
central basis upon which the magistrate refused the application for
bail on ‘new’ facts was that the ‘new’
evidence presented did not alter the initial finding, namely that
that the appellant had not succeeded in showing that the interests
of
justice permit her release.
[25]
In
coming to this conclusion the magistrate considered the evidence
presented by Horak relating to the strength of the state’s
case
against the appellant and his evidence that further cases had been
commenced since her previous bail application. Against
this he
weighed the appellant’s denial of any wrongdoing. The appellant
criticised the magistrate’s assertion that
her evidence was
presented in affidavit form and therefore not subject to testing. It
was submitted that the magistrate had not
had regard thereto or
attached sufficient weight to the evidence.
[26]
It
is indeed so that evidence presented by way of affidavit is not
subject to testing. The fact that is not is to be weighed when
considering the probative value of the evidence in the face of
contradicting evidence which is presented
viva
voce.
The
respondent presented such evidence in order to justify its opposition
to bail; to indicate the nature and strength of
the case against the
appellant; and to establish further grounds for refusing bail. This
latter evidence included the fact that
further cases against the
appellant had come to light since the first bail application. The
appellant did not present any evidence
to contradict or rebut the
evidence of Horak which was tendered
viva
voce.
[27]
In
dealing with the challenge to the strength of the state case the
magistrate noted, quite correctly, that it is for the person
on whom
the
onus
rests to establish on balance of probabilities that he / she will be
acquitted (cf.
S
v Mathebula
2010 (1) SACR 55
(SCA)). He found that this was not established.
[28]
The
magistrate’s finding that there is a likelihood that the
appellant would seek to evade trial should she be admitted to
bail
cannot, in my view, be faulted. The finding was based on a careful
appraisal of the history of the matter; that she had on
numerous
occasions failed to appear at trial; that she had previously failed
to comply with her bail conditions and had forfeited
bail moneys to
the state in respect of matters before the courts in Port Elizabeth
and in Gauteng. It was on the strength of this
finding that the
magistrate concluded that the appellant had failed to discharge the
onus
which rested upon her.
[29]
In
order for the appellant to succeed it is necessary that this court be
satisfied that the magistrate was wrong in his conclusion.
I am
unable to discern any misdirection in regard to the facts as they
appear from the record. Nor am I able to discern any error
in
relation to the legal principles applicable to matters such as this.
I am therefore not satisfied that the magistrate was wrong
in
refusing to admit the appellant to bail. In my view the magistrate’s
conclusion is based upon a consideration of all of
the evidence and
takes into account the factors required to be considered. It follows
therefore that the appeal cannot succeed.
[30]
I
therefore make the following order:
The
appeal is dismissed.
____________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
The
Appellant in person.
For
the Respondent
Adv.
T. Van Zyl
C/o
Director of Public Prosecutions
[1]
It is to be
noted that the appellant had, in relation to this aspect, launched
separate legal proceedings against the Department
of Correctional
Services in this Court to be permitted access to a laptop computer
and various other resources. The application
was dealt with Chetty J
who delivered judgment on the day that the bail appeal was heard.
Although the application was dismissed,
the judgment records that
access to computer resources and internet access have been provided.