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[2018] ZAECPEHC 83
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Bavisa v S (27/26/18) [2018] ZAECPEHC 83 (2 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
{EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH}
Case No. 27/26/18
In
the matter between:
NHLANHLA
BAVISA
Applicant
And
THE
STATE
Respondent
JUDGMENT
(BAIL APPEAL)
TONI
AJ
Introduction
[1]
In this matter the appellant, Nhlanhla Bavisa, launched an appeal
against the refusal by the Magistrate for the District
of Port
Elizabeth to grant him bail. The appellant was arrested by
members of the South African Police Service (SAPS) on
27 December
2017 and was charged with two counts of extortion. He has been
in custody henceforth and has approached this
court by way of an
appeal after he was refused bail by the learned Magistrate on 29 May
2018.
[2]
The grounds of appeal advanced by the appellant are that the
learned Magistrate erred in:
“
2.1
Postponing
the matter in terms of section 50 (6 (i) and not ordering
the State
to produce sufficient rebuttal evidence and ignore the
appellant’s
evidence in terms of section 60 (11).
2.2 Accepting
evidence by the State that the appellant has a string of
criminal
records and ignored the appellant’s submission that he cannot
be linked
to any criminal or previous conviction when there is no
evidence
that a fingerprint expert has done comparison from his
fingerprints.
No fingerprint statement or name.
2.3 Accepting
that the appellant has pending cases against him when the
State has failed to
prove any pending cases against him.
2.4 Accepting
that the appellant is a flight risk when his address was not
verified and no
attempt was made by the State to verify same and no
evidence by the State
of a warrant against him.
2.5 Ignoring the
fact that the appellant was arrested at the police station
and being
there on his own free will.”
[3]
Whilst the above grounds of appeal may not have been couched in any
clinical fashion this does not, however, divest this
Court of its
inherent power to adjudicate the matter and determine the issue
before it. In so doing I have taken the view
that the appellant
is a layperson who was not legally represented during the bail
application proceedings and in launching this
appeal.
[4]
During the bail application proceedings the appellant was not
represented. He first appeared before the Court
on 3 January
2018 and was represented by Advocate Matoto. On the said date
the state recorded its opposition to the granting
of bail and
requested postponement of the matter to 10 January 2018 for the
appellant’s profiles and finger prints (SAP 69).
The
matter was accordingly postponed to the said date which was referred
to as the provisional date by the State.
[5]
On 10 January 2018 the appellant further appeared before court and
the State sought further postponement of the matter
to 18 January
2018, once again for the appellant’s profiles, SAP 69’s
and verification of the appellant’s address.
On 18
January 2018 the appellant appeared before the Magistrate’s
court once again and on this date he was further remanded
to 24
January 2018. The matter kept on being remanded and further
remanded to the following dates, namely; 9 May 2018, 16
April 2018,
17 April 2018, 24 April 2018, 28 April 2018, 2 May 2018, 9 May 2018,
14 May 2018, 21 May 2018 and 29 May 2018 when
the application for
bail was refused. Even after the refusal of bail the appellant
was kept on being remanded in custody
and at the hearing of this
matter it was intimated by the State that the matter is now ready for
trial and has been postponed to
some date in October 2018.
[6]
More displeasing in a constitutional democracy that South Africa is
today is that in all the above instances the
appellant was
remanded in custody and various reasons were given by the state for
seeking postponement. These reasons and
their adverse effect on
the appellant’s constitutional right to be released on bail
will be dealt with later in this Judgment.
It is, however,
worth mentioning that the fact that the appellant has been
languishing in police detention since his arrest is
beyond
comprehension. It is in defiance of logic and is irrational,
capricious and gratuitously oppressive.
[7]
The appellant has been in police custody for precisely the same
reason that was advanced on 3 January 2018 since 27 December
2017.
Effectively the applicant has been in detention without trial for
more than seven months.
Issue
to be determined
[8]
The crisp issue falling to be determined by this Court is whether in
denying the appellant bail the learned Magistrate
misdirected himself
or not. Put differently the issue is whether the appellant’s
continued detention without trial
is in the interest of justice.
For proper determination of this crisp issue the Court will have
recourse to the Constitution
of the Republic of South Africa, “the
Constitution”, as well as the pertinent provisions of the
Criminal Procedure
Act relating to the accused right to be released
on bail.
[9]
In determining the above issue the court is enjoined to consider all
factors that weigh heavily in favour of the appellant
as against
those that weigh heavily in favour of the State and put those factors
in a judicial scale before coming to a conclusion
as to whether it is
in the interest of justice that the appellant remains in custody
pending the finalisation of his trial or is
released on bail.
Facts
[10]
It is common cause that the appellant was arrested on 27
December 2017 and was charged with two counts of extortion.
The
state alleged that he attempted to extort R50 000.00 and
R40 000.00, respectively, from two retail stores located
in Port
Elizabeth by informing them that they had to pay a fine for flouting
the law and employing their staff without properly
registering them
for UIF and other infractions.
[11]
Having been arrested, the appellant was formally charged at Humewood
police station where he was detained. The
circumstances leading
to his arrest are in dispute with the state alleging that the
appellant was arrested by members of the SAPS
after a tip off from
one of his victims. The appellant on the other side contended
that he presented himself at Humewood
police station for the purpose
of signing a Memorandum of Understanding (MOU) with one of his
potential clients after concluding
an agreement with him for the
provision of certain labour related services.
[12]
The appellant averred that on the day in question he approached two
retail stores in Port Elizabeth for the purpose of
marketing his
services and having agreed with the owner of the first store to sign
an MOU, he proceeded to the next store where
he also agreed with the
store manager to sign an MOU as a prelude to their agreement.
The appellant suggested that this MOU
be signed and commissioned at
Humewood police station and whilst on their way thereto they saw
a marked police vehicle which
was also on its way to Humewood police
station. He sought a hike from the driver of the said
police vehicle.
At Humewood police station he went to the crime
office for the purpose of drafting and printing the MOU and was
arrested when one
of the Captains on duty came in with another man
who is apparently an employee at the clothing store he earlier
visited and claimed
that he (the applicant) had extorted him.
[13]
However, it was later conceded by the police official who
testified for the State during the bail application hearing
that the
appellant was indeed arrested at Humewood police station.
[14]
Despite having been arrested on 27 December 2017, the appellant
was only brought before Court on 3 January 2018.
It is not
explicit from police evidence why was he brought before Court only on
3 January 2018 as this date is beyond the requisite
48 hours upon
which an accused must be brought before court. Absent a
reasonable explanation from the police for his detention
beyond 48
hours as contemplated in section 50 (c) (i) of the Criminal Procedure
Act
[1]
, the appellant’s
detention was unlawful. Section 50 provides:
“
50 (1) (a) Any
person …
(b)
Any person …
(c) Subject to paragraph
(d), if such an arrested person is not released
by
reason that-
(i) no
charge is to be brought against him or her; or
(ii)
bail is not granted to him or her in terms of section 59
or
59 A, he or she shall be brought before a lower
court
as soon as reasonably possible, but not later
than
48 hours after the arrest.
(d) if the period of 48
hours expires-
(i)
outside ordinary court hours or on a day which is not
an
ordinary court day, the accused shall be brought
before
a lower court not later than the end of the first
court
day;
Inordinate
remands and reasons therefor
[15]
On 3 January 2018 the matter was remanded to 10 January 2018 at the
instance of the State which sought to obtain the
appellant’s
profiles and SAP 69’s. On 10 July it was further
postponed to 18 January 2017, precisely for the
same reason and also
for the verification of the appellant’s address.
Despite the fact that the appellant intimated
on 3 July 2018 that he
intended applying for bail, no bail proceedings were set in motion.
Instead on 18 January 2018
he was further remanded in custody
to 24 January 2018, presumably to afford his Counsel to consult with
him. No further reason
could be gleaned from the record for
this postponement.
[16]
It escapes one’s reasoning and defies simple logic why
the matter could be postponed simply for the purpose of
consultation
as the appellant’s Counsel already appeared for the
appellant as far back as 3 January 2018. The
reason advanced
for this postponement is simply inconceivable and may be easily
perceived by a rights sensitive mind as a delaying
tactic to prolong
the appellant’s further detention without trial. It
is insensitive to the appellant’s
right to be released on bail
as envisaged in section 50 referred to above and is inconsistent with
the provisions of Constitution.
[17]
The above displeasure notwithstanding, the matter came
before Court on 24 January 2018 and was further postponed
to 26
January 2018, this time for bail arrangements to be made for the
appellant at Court 27. On 26 January 2018 the matter
was
further adjourned to 9 February 2018, this time for consultation once
again and possible plea. One would only assume
that when the
matter is postponed for plea everything else has been done to ripen
the matter for trial and the matter was trial
ready.
[18]
Quite disturbingly though, the matter was further adjourned on 9
February to 16 April 2018 for further
investigation. It is
unfathomable why the matter could be postponed for a plea on 24
January 2018 when investigations were
still incomplete. Further
incomprehensible is the reason why investigations would be incomplete
almost six months after the
appellant was arrested and detained.
If I understand the facts of this case correctly, the appellant was
arrested right at
the scene of crime for a simple case of extortion
where the two alleged victims were easily available. It was a
straight
arrest where one of the alleged victims was at the police
station at the time the applicant was arrested.
[19]
Be that as it may an earlier entry on the record of 16 April
2018 indicates that the matter was further postponed to
28 May 2018
for further investigation again. A further entry
afterwards indicates, indistinct though it may be, that
the State
sought further postponement for the purpose of obtaining a section
205 statement. Further scribbling in this entry
is completely
blurred and indecipherable. For whatever it is worth, the
matter was further postponed to 17 April 2018.
It us not
apparent from the record why bail application could not be made on
the said date as the matter was previously postponed
for bail
application arrangements.
[20]
On 17 April 2018 the appellant appeared in person and it could only
be assumed that his legal representative withdrew.
On this date
the State further sought postponement of the matter for the
appellant’s profiles, SAP 69’s and verification
of
address. This is precisely the same reason for the remand of
the matter on 3 January 2018. No explanation was proffered
by
the State and no enquiry was conducted by the learned Magistrate why
these could not be obtained since 3 January 2018.
[21]
Apparent from the record is that this postponement irked the
appellant’s ire as the record reflects his jeer that
“
Not
new case. Info should be available
”. This did not
seem to bother the State as it was steadfast that it “
will
oppose the applicant’s release on bail and will arrange with
the Investigating Officer
”. This did not seem
to have disturbed the learned Magistrate either, once again, as
he simply acquiesced
and remanded the appellant in custody.
At this stage the learned Magistrate at least had the tenacity to
mark the remand
“
Preferent FINAL
”, for
whatever it is worth. The learned Magistrate further
endorsed for “FBA & I/O which can safely
be assumed that
the remand was for bail application and the Investigating Officer.
[22]
Bizarrely and contrary to the learned Magistrate’s endorsement
that the postponement on 17 April 2018 was final, it appears
from the
record that the bail application could not proceed even on this date
on a flippant excuse this time that the Investigating
Officer was not
in court and even though his colleague was available to proceed,
there was no Magistrate to entertain the bail
application.
[23]
What is discernible from the above conduct is either that no proper
arrangements were made for entertaining the bail application
or there
was no resolve on the part of the court
a quo
to entertain the
bail application. Consequently, the appellant was further
remanded in custody to 2 May 2018 for “
PREFERENT BAIL
APPLICATION
”. It was also endorsed by the
learned Magistrate that the case will proceed as early as possible.
[24]
This remand was allowed despite the applicant’s reasonable
objection to further remand.
[25]
On 2 May 2018 the bail application hearing proceeded and the state
sought further postponement. The matter
was further
postponed to 9 May 2018 on the grounds that the appellant disputed
his previous convictions and the Investigating Officer
was not before
court. The State also came up with some allegations that the
appellant was out on parole and, therefore, sought
to confirm the
appellant’s parole conditions from Daveyton police station.
The appellant correctly objected to a further
postponement on the
grounds that the State was supposed to be ready with this information
since January 2018. The appellant
also decried the fact that
the Investigating Officer was not before court as he knew that the
application would proceed on that
date. Such objection
notwithstanding, the appellant was further remanded in custody for
the verification of his alleged parole
conditions and for the
investigating officer to be in court.
[26]
On 9 May 2018 the appellant was further remanded in custody to 14 May
2018. It is not clear from the record why
this matter was
postponed on 9 May 2018. On 14 May 2018 the State further
sought postponement for the appellant to furnish
the investigating
officer with fresh fingerprints to confirm the applicant’s
previous convictions. Once again the appellant
objected to the
postponement on the grounds that his right to be released on bail is
an urgent matter. Nonetheless
the matter was postponed to
21 May 2018.
[27]
On 21 May 2018 the bail application could not proceed as the state
sought another postponement for the appellant’s
fingerprints
which were still outstanding. The State also sought the
appellant to explain himself relative to the allegations
of his
previous convictions. There was also a new dimension
relating to the appellant having been brought to court
by prison
warders. Having been offered an opportunity to explain himself
by the court the appellant explained what transpired.
Apparently the appellant was arrested on a warrant by prison
warders on an allegation that his fingerprints resemble those
of
someone who was on parole and breached parole conditions.
Bail
proceedings
[28]
During the bail application hearing on 2 May 2018 the States alleged
that even though the appellant was charged with
a Schedule 1 offence
of extortion, the offence falls under Schedule 5 because of the
appellant’s previous convictions.
The appellant,
therefore, bore the onus to satisfy the Court of the existence of
exceptional circumstances that would entitle
him to be released
on bail, so contended the State. It was the state’s
contention that the appellant “
had previous convictions
relating to the current offence and also quite a substantial number
of previous convictions”
. The State further contended
that the appellant was released on parole and his parole and will
only expire in 2020.
[29]
The appellant adduced evidence in his bail application by reading an
affidavit he prepared for that purpose. The
appellant’s
testimony is that he was born in Boksburg, South Africa, and has
resided in South Africa for all his life, has
never left the borders
of South Africa and does not intend doing so in any foreseeable
future. He further stated that he
does not have any passport or
any form of travel document that could entitle him to leave the
country. He presently
resides at 14699, Marikana
Location, Boysen Park, Port Elizabeth. His family and
friends permanently reside in
the Republic. He owns movable and
immovable assets in South Africa which are valued at approximately
R1.6 million.
[30]
He is an Accountant by Profession, holding a degree of Bachelor of
Accounting Science and is busy studying for a degree
of Baccalaureus
Legum (LLB) with the University of South Africa. He earns
approximately R264 000.00 per annum from his
professional
occupation.
[31]
In relation to the offence with which he is charged, he denied the
allegations levelled against him and was content that
the state will
not be able to present objective facts to substantiate such
allegations. Putting his version of the
events of 27
December 2018, he stated that on the day in question he visited Small
Medium Enterprises around Greenacres for
the purpose of
marketing his accounting services. He approached the owner of a
butchery who became interested in his services
and after some
discussion he informed the owner that before he could commence with
his services, they had to sign a Memorandum
of Understanding (MOU)
which had to be commissioned at Humewood police station, “the
Police Station”. They agreed
to meet at the police
station but because he had a few other places to visit, he left.
[32]
In relation to Count 2, he stated that he visited a certain clothing
shop for the same purpose as stated above and met
with the manager
who, after telephonically contacting the owner, was also interested
in his services. He informed the manager
that they had to sign
and commission an MOU at the police station to which the manager
agreed. On their way to the
police station, he saw a
marked police motor vehicle and having sought a lift from its driver,
they left for the police station.
[33]
At the police station, he went to the crime office, he took out his
laptop for the purpose of drafting and printing the
MOU and whilst
still busy doing so, one of the Captains on duty came in with another
man, ostensibly an employee of the clothing
shop he earlier visited.
This man claimed that he extorted him. He was then arrested and
detained at the police holding
cells.
[34]
The appellant contended that he will stand trial and as additional
facts he further contended that he was not disposed
to interfering
with state witness as he did not know their identity. He further
stated that he held no grudges against anyone and
that he is
not disposed to violence. The foregoing supports his
contention that he is not a flight risk, he continued,
adding that he
went to the police station on his own accord. He has no
knowledge of any evidentiary material which
may exists in
relation to the allegations against him which, if it exists, is
in the possession of the police. He therefore
undertook not to
interfere with police investigations or any witnesses.
[35]
Concluding his evidence the appellant stated that his continued
detention is prejudicial to him and is of no benefit
to the State.
His release on bail will not disturb public order or undermine the
proper functioning of the criminal justice
system, so he further
contended. Should he be released on bail, he will comply with
his bail conditions and could raise the
bail amount of R500.00.
[36]
In its opposition to the granting of bail, the state placed its
reliance on an affidavit deposed to by one Warrant Officer
Greyling,
“Greyling”, which was read into the record.
Greyling is a member of the South African Police Service
and is
stationed at Humewood police station. In the said
affidavit Greyling stated that the appellant visited businesses
where
he identified himself as Department of Labour official and questioned
business owners relative to whether their employees
had the requisite
papers to be employed and demanded money if the paper work was not in
order and in the event that there were
outstanding payments in return
for not reporting these irregularities to the department of labour.
He was then paid R10 000.00
in respect of CAS no. 455/12/2017
after the owner could not afford the R50 000.00 he allegedly
demanded. He was further
paid on demand R10 000.00 in
respect of CAS no. 532/10/2017. He was apprehended on his way
out of the shop, Greyling
stated.
[37]
Greyling further stated that according to Constable Meyer, the
investigating officer in that case, the appellant is currently
out on
parole on a charge of extortion. He stated that there is
documentation from the Local Criminal Record Centre (LCRC)
which indicates that the appellant was released on parole on 5 May
2016 which parole will expire on 6 June 2020. According
to
Greyling the appellant’s profiles indicate that the he has
pending cases in respect of Brakpan CAS no, 127 09/17 and that
constable Meyer is in possession of a warrant of arrest issued on
Benoni CAS no. 263/08/2017. A certain Sergeant Naicker
confirmed that the appellant’s real names is Pressbe Linda
Nemakazi and not Nhlanhla Bavisa, Greyling’s evidence
continued. He further stated that the appellant has numerous
cases of fraud, theft, extortion, as evidenced by SAP 69’s.
His address had not been confirmed but the appellant is not employed
by the department of labour. The warrant of arrest issued
is in
respect of his failure to attend court. Greyling concluded by
stating that he believed that the appellant is a flight
risk
[38]
The State also stated that the appellant was convicted of the
following offences: theft on 23 January 1995, robbery on
1 March
2010, fraud on 18 October 2011 with appropriate sentences and was
released on parole on 5 May 2016. The State handed
in profiles
which allegedly indicted that the appellant was, in fact, Linda
Nhlanhla Pressbe. On the other profile
he appeared as
Bavisa Nemakazi, the State contended. The State then
sought postponement for the investigating officer
and the appellant
was remanded in custody to 9 May 2018.
[39]
The appellant strongly denied the previous convictions and that he is
the person referred to as Pressbe Linda Nemakazi
or any other name.
The matter did not proceed on the 9
th
and 14
th
May 2018 as explained above. On 21 May 2018 the State intimated
that the fingerprints would not be available from Pretoria.
On
the even date constable Meyer, “Meyer” testified as to
how the appellant was arrested, regurgitating what Geldenhuis
had
already stated.
[40]
According to Meyer he received a photo which is in a National
Identification System from the investigating officer in Benoni
which
he compared with the appellant’s previous convictions and
confirmed that it is the same person. Meyer further
stated that he took the appellant’s fingerprints to Mount Road
LCRC where he was told to make an application to Pretoria
for
comparison of the applicant’s fingerprints from the SAP 69’s
to the fingerprints he obtained on SAP 192.
He confirmed
that he picked it up from the appellant’s profiles that the
appellant was released on parole from 5 May 2016
to 6 June 2020 and
that the appellant was convicted of seven counts of fraud.
[41]
Meyer conceded during cross examination that he did not have
information regarding the comparison and verification of
fingerprints
as this is done in Pretoria, through the LCRC in Mount Road.
Similarly no verification of death of Pressbe Linda
Nemakazi,
“Namakazi”, was done with the departments of labour and
home affairs yet despite the fact that a death certificate
of this
person was found when the appellant was arrested. Meyer
testified that for such verification to be done, it required
section
205 forms to be completed which had not been done yet because the
case docket went to court.
[42]
Meyer could not explain why such information could not be readily
available. It is inconceivable that information
for such a
simple process of comparison and verification could not be available
in May 2018 as Mount Road LCRC offices are in Port
Elizabeth where
the offence was committed. It should not have been a difficult
process at all to obtain such information
and make it available
during the bail application proceedings. Both the
departments of labour and home affairs
also have local offices from
which the name and death of Nemakazi could have been verified.
[43]
This case had been postponed on numerous occasions from 3 January
2018 for further investigation and other reasons and
it could not
have been difficult for the investigating officer to obtain the case
docket for that purpose. The appellant
also submitted that it
would not have been so difficult for the investigating officer to
investigate all outstanding issues against
him as he abandoned his
bail application when the matter was transferred to court 27 on 24
January 2018 and was postponed to 16
April 2018. It is unfair
that the section 205 forms were still in the case docket and not
served at the time that the bail
application was heard in May 2018.
[44]
The appellant denied that the previous records relating to Nemakazi
were his and put this in issue when he cross examined
Meyer.
Meyer could not logically link such previous records to the appellant
for want of comparison of fingerprints and verification
of Nemakazi’s
death certificate. The above is more apparent from page
66 of the record when the following question
were posed to Meyer by
the applicant:
“
Applicant : I
just want to know from you, since you have this information that
Pressbe Linda Nemakazi is deceased do you want this
Court to believe
that the records that you have they (sic) are actually my records?
Meyer : I do not know
that for a fact Your Worship.
Applicant : Okay do
you have information of that?
Meyer : I have
information about it yes Your Worship.
Applicant : And you
never followed that information?
Meyer : No Your
Worship.
[45]
The only possible link that Meyer could establish was through
comparing the appellant’s alleged previous criminal
records,
which the appellant denied, with a photo he received from the
investigating officer in Benoni. It also transpired
during cross examination that Meyer never bothered verifying the
appellant’s residential address.
[46]
In addition to the appellant’s alleged previous criminal
record, the State also opposed bail on the ground that
the accused is
a flight risk.
Bail
Appeal
[47]
Having been refused bail by the court
a quo
the applicant
launched this appeal.
[48]
In refusing to grant bail the learned Magistrate found that:
(a) The
appellant did not discharge the onus to prove that it was in the
interest of justice that he be released on
bail and the learned
Magistrate accepted the evidence of the State that the appellant had
previous convictions, that he had an
outstanding case in Benoni and
was on parole.
(b) The
appellant is a flight risk since he has an outstanding case in Benoni
where a warrant for his arrest has been
issued and for this reason,
the learned Magistrate opined that there is a likelihood that he will
not stand trial if released.
(c) The State
also had a strong case against the appellant.
Argument
[48]
During his argument the appellant maintained his denial of the
pending criminal cases against him, his previous convictions
and that
he was released on parole. He argued strongly that his
continued detention is in violation of his constitutional
rights and
bemoaned delays in hearing his bail application and concomitant
postponements of his case as “
justice delayed, justice
denied.
These delays violated his right to a speedy bail
and fair trial. He also submitted that the State had
failed to provide
the court with all relevant information for proper
adjudication of his bail application when it had ample opportunity to
do so.
[49]
He also refuted submission by the State that he is a flight risk and
submitted that the learned Magistrate erred in accepting
this as he
had no passport or any form of travel document, he is a South African
citizen and had never travelled abroad and had
a fixed residential
address which the investigating officer failed to verify. The
appellant submitted that he had immovable
property which together
with his movables was valued at R1.6 million. He further
submitted that he had three children who
were wholly dependent on him
for their maintenance and support and his continued detention was
prejudicial to him and his minor
children.
[50]
In her argument, Ms Landman placed reliance in opposing the granting
of bail on the applicant’s previous convictions,
pending cases
and the fact that the applicant was released on parole for a similar
offence. Ms Landman further argued that
the applicant was a
flight risk and will not attend his trial if he were to be released
on bail. However, Ms
Landman was constrained to
explain the reasons why it took so long for the police to
finalise their investigation and why
the matter has not found its way
through to court for trial. To this she could only say
that the matter is now ready
for trial and has been allocated a date
in October 2018. She could not take the matter further when she
was asked whether
there was effective balancing of the applicant’s
right to bail and the state right to investigate in the process.
Discussion
[51]
Section 65 (4) of the Supreme Court Act provides that a Court hearing
an appeal against the refusal to release an applicant
on bail will
not set aside the
decision
of the magistrate unless such Court is satisfied that the decision
was wrong. The proper approach to be followed
is set out in
S
v Barber
as follows:
“
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
view for that of the magistrate because it would
be an unfair
interference with the magistrate’s exercise of discretion.
I think it 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 . . .”
[2]
[52]
The position of a bail applicant who is accused of having committed
an offence mentioned in Schedule 5 is governed by
the provisions of
section 6 (11) of the Act. Section 6 (11) provides:
“
60
(11) Where an accused is charged with an offence referred to
-
(a)
in Schedule 5, 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 reasonable opportunity to do so,
adduces evidence which satisfies the court that
exceptional
circumstances exist which in the interest of Justice
permit his or her release;"
[53]
The term, “exceptional circumstances”, is not properly
defined in the Act. In
S
v Schietenkat 1999 (2) SACR 51 (CC)
[3]
,
the Constitutional Court held that,
"the
inclusion
of the requirement “exceptional
circumstances” in Section
60 (11)
(a)
limits the right enshrined in Section 35 (1) (f) of the Const
i
tution,
it is a
limitation
which is reasonab
l
e
and justifiable in terms of the Constitution in current
circumstances.
[54]
In
S v Jonas
1998 (2) SACR 673
at (687 e-j
) Horn AJ held that
“exceptional circumstances” is established when an
accused is able to adduce acceptable evidence
that the case against
him is non-existent or subject to serious doubt. The learned
Judge further said:
“
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
will 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 a commission of a Schedule 6 offence when
everything points to the fact that he could not have committed
the
offence e.g he has a cast - iron alibi, this would likewise
constitute an exceptional
circumstance.
''.
[55]
The standard of proof required from the appellant to establish the
existence of “exceptional circumstance”
is on a balance
of probabilities
.
See
S v
Rudolph
2010 (1) SACR 262
(SCA) at 266 f-g
.
Once “except
i
onal
circumstances” have been established by a bail applicant the
enquiry must focus on the balance between the interests
of the State
as set out in
Section
60 (4) of the Act on the one hand, and the appellant's
interest in his personal freedom as set out in Section 60 (9) of the
Act,
on the other hand.
Section 60 (4)
provides
:
“
(4)
The interests of justice do
not
permit the re
l
ease
from detention of an accused
Where
one
or
more
of
the
following
g
r
ounds
are
established;
(a) where there is a likelihood that the accused, if he or she
is released
on
bail, will endanger the safety of the public or any particular person
or will commit a
Schedule
1 offence, or
(b) where there is a
likelihood that the accused, if he or she were released on bail
,
will attempt to evade his o
r
her tria
l
;
or, (c) where there is a likelihood
t
hat
the accused
i
f
he or she were re
l
eased
on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence,
or
(d) where there is likelihood that the
accused
,
if
he or she were released on bail, will underm
i
ne
or jeopardise the object
i
ves
or the proper functioning of the
criminal justice system, including the
bail system, (e)
whe
r
e
in
except
i
onal
c
i
rcumstances
there
is
a
l
ikelihood
that
the
release of the accused will disturb the publ
i
c
order or undermine the public peace or security”
.
[56].
Section 60 (9) provides:
“
(a)
In considering the question in subsection 4 the court shall decide
the matter by weighing the interest of justice against
the rights of
the accused to his
or
her personal freedom and in particular the prejudice he or she is
likely to suffer if he or she were to be detained
i
n
custod
y
,
taking into account where applicable,
the following factors;
(b) the
period for which the
accused
has already been
i
n
custody since his or her arrest;
(c)
the reason for the delay in the disposal or conclusion of the tria
l
and any fault on part of the accused
with regard to such delay. (d) any impediment to the preparation of
the accused's defence or
any delay
i
n
obtaining legal representation which may be brought about by the
detent
i
on
of the
accused
;
(e) the state of health of the
accused;
(f) any other factor which in the opinion of the court should
be taken into account”.
[57]
The issue in
casu
is whether the learned Magistrate
misdirected himself in refusing the appellant bail and whether it is
in the interest of
justice that the appellant be released on bail.
[58]
The summation of the learned Magistrate’s refusal to release
the appellant on bail pivots only on three factors;
namely, that, (a)
the applicant has previous convictions, (b) that he is a flight risk,
and (c) that the state’s case against
him is strong. It
does not seem to me that the learned Magistrate ever bothered
balancing the interest of the applicant and
those of the State or did
he even bother considering the personal circumstances of the
applicant in order to ascertain whether
there are exceptional
circumstances or not. In my view that is a misdirection.
[59]
Whilst in some cases previous convictions can be of a serious
nature, I do not agree that previous convictions alone
could be used
by the court to punish an accused and deny him bail. This, in
my view, is in keeping with a long held legal
principle that refusal
to grant bail to an accused should not be used as some form of
anticipatory punishment.
[60].
In considering whether it is in the interest of justice that the
appellant be released on bail the court
a quo
should have
balanced the interest of the appellant and those of the State.
In
S v Hudson
1996 (1) SACR 431
(W),
Flemming DJP held:
“
Considering the
granting of bail involves, as is well known, a balancing of the
interest of justice against the wishes of the accused.
But this
is, of course, not accurate. Those interests are not fully in
opposition. It is also to the public good and
part of public
policy that a person should enjoy freedom of movement, of occupation,
of association, e.t.c…”
[61]
In
S v Stanfield
1997 (1) SACR 221
(C)
it was held that
the court
a quo
had lost sight of the fact that denial of bail
would be in the interest of justice only if one of the factors set
out in section
60 (4) was probable.
Where
the facts in sections 60(4) and 60(9) of the CPA are relied upon in a
bail application they are relevant and cannot be ignored.
[62]
The learned Magistrate should have also taken into consideration the
factors set out in section 60 (9) and more particularly
the period
the applicant has spent in detention pending his trial.
[63]
In relation to the learned Magistrate’s finding that the
appellant is a flight risk, no proper and acceptable evidence
was
placed before court to make that finding. That finding is based
on the assumption that because the state has alleged
that the
applicant has a warrant of arrest against him he might evade
justice. The court
a quo
had lost sight of the
fact that the appellant has a fixed address in the Republic and has
no means to fly abroad. The appellant
testified passionately
about the impossibility of him escaping from the country and such
evidence was not challenged by the State.
The appellant further
testified that he has valuable immovable property and such submission
had not been challenged. The
failure of the investigating
officer to verify his residential address cannot be faulted on the
applicant.
[64].
Similarly the reliance by the State on the strength of its case could
not have been considered in isolation. In
S
v Van Wyk
2005
(1) SACR 41
(SCA)
at paragraph (6), it was held that “
the
duty of the court in a bail application is to assess the prima
facie strength of the state case against the bail applicant
as
opposed to making a provisional finding on the guilt or otherwise of
such an applicant. Bail proceedings are not to be
viewed as a
full dress rehearsal for trial. The making of credibility
findings of witnesses on the merits of the case against
the accused
is left to the trial court which is better placed to assess such
witnesses. (See
S
v Van Wyk
2005
(1) SACR 41
(SCA)
at par [6])”
.
Conclusion
[65]
I am not convinced that it is not in the interest of justice that the
applicant be released on bail. The delaying
tactics employed by
the State in its investigation coupled with unreasonable
postponements point to one undesirable consequence;
namely, that of
violating the appellant’s constitutional right to be released
on bail. In allowing these postponements,
the court
a quo
was
not sensitive enough to the constitutional rights of the appellant.
The court
a quo
failed to make rational balancing
of the appellant’s right to bail and the state’s right to
investigate. In
Duncan v Minister of Law and Order
1986 (2)
SA 805
(A) at 819 G – 820 A,
the court held:
“
it
is now constitutionally required that there should be a rational
balancing of the applicant’s right to bail and the state’s
right to investigate. There must be a lawful cause before
detention for the purpose of investigation can frustrate the accused
right not to be detained.
Order
[66]
In the result I grant the following order:
1.
The decision of the court below refusing
bail to the applicant is set aside and is substituted with the
following:
“
Bail
is granted to the appellant in the amount of R5000-00 on
condition that upon payment of the bail amount by the applicant,
he:
(a)
shall report at Humewood police station, Port Elizabeth once a
week;
(b)
shall surrender his passport or any travel document, if he has any,
to
the investigating
officer, constable Meyer, as soon as he is released;
(c)
shall not directly or indirectly interfere with State witnesses;
(d)
shall attend trial in the Magistrate’s court for the District
of Port Elizabeth and shall remain in attendance until
his case is
finalized.
___________________________________
H.
S. TONI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Appellant
: In Person
Port
Elizabeth
For
the state
: Advocate
Landman
Instructed
by State Attorney
Port
Elizabeth
HEARD
ON
: 21
September 2018
DELIVERED
ON : 2
October 2018
[1]
Act 51 0f 1977
[2]
1979. (4) SA 218 (D)
[3]
At
paragraph 77