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[2018] ZAECPEHC 52
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Tromp and Others v S (CA&R 13/2018) [2018] ZAECPEHC 52 (3 October 2018)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: CA&R 13/2018
Date heard: 1 October 2018
Date delivered: 3 October 2018
In the matter between
RICARDO
TROMP
First Appellant
JUVANO VAN
STAADEN
Second Appellant
RYAN ALBERTO
LEEUW
Third Appellant
And
THE
STATE
Respondent
JUDGMENT
GOOSEN,
J.
[1]
The appellants have been charged with
kidnapping and rape. The incident giving rise to the charges is
alleged to have occurred on
1 December 2017. It is alleged that
several men, including the appellants, entered the home of the
complainant and her boyfriend.
The two of them were taken to a
deserted house where they were held. It is alleged that the
complainant in respect of the rape
charge, an eighteen year old
woman, was repeatedly raped by the appellants.
[2]
The appellants were arrested on these
charges on 2 December 2017. After their appearance in court they
initiated a bail application,
which was commenced on 6 December 2017.
The bail application was postponed on several occasions. They were
represented throughout.
On 22 February 2018 the application for bail
was abandoned. On 16 March 2018, when the appellants again appeared
in court, the
matter was remanded for a formal bail application. When
the matter came before the magistrate, the magistrate ruled that the
bail
application would need to be commenced
de
novo
since the earlier application had
been abandoned. There was a postponement which flowed from this and
thereafter further postponements.
The application for bail proceeded
on the basis of evidence tendered by the appellants. The state
opposed bail and presented the
evidence of the investigating officer,
warrant officer Andrews, by way of affidavit. The magistrate
dismissed the bail application.
It is against this judgment that the
appellants appeal.
[3]
It is common cause that the offences for
which the appellants are charged fall within the ambit of Schedule 6
of the Criminal Procedure
Act, 51 of 1977 (hereinafter ‘the
CPA’). Accordingly the
onus
rested upon the appellants at the bail application to establish
exceptional circumstances which would render it in the interests
of
justice to release them on bail.
[4]
Section
65 (4) of the CPA provides that a judge hearing a bail appeal shall
not set aside the decision against which the appeal
is brought unless
satisfied that the decision was wrong. This court’s powers on
appeal, as held in
S
v Barber
,
[1]
are limited:
Th[e] 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 that would be an unfair interference
with the
magistrate’s exercise of its discretion. I think that 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.
[5]
In
S
v Mbele and another
[2]
it was held that s 65 (4) envisages the following approach:
In other words, this
Court is required to approach the appeal on the basis of the
assumption that the decision of the Court below,
was correct, and not
to interfere with that decision unless “satisfied” that
it was wrong. Generally speaking, such
as state of “satisfaction”
will not be reached by the minds of the members of a Court of appeal
unless they are persuaded
accordingly. In the ordinary course,
therefore, it remains for the appellant to persuade the Court of
Appeal that the Court below,
was wrong. Although the term “onus”
or “burden” may obviously be used in broad and narrow the
senses, its
technical connotations relating to the incidence of the
burden of proof of facts in a trial action may perhaps render it an
unsuitable
term to use in the context of a bail appeal. Whatever
terminology may be employed, the idea that must be grasped is that
the Court
of Appeal is required to uphold the order made by the Court
below, until enough has been done to persuade and satisfy the Court
of Appeal that the order was wrong, and, in the ordinary course, it
is for the appellant to do whatever has to be done in that
regard.
[6]
The
court must be satisfied, having regard to all of the circumstances
and the evidence placed before the court
a
quo,
that the magistrate was wrong in refusing to admit the applicant to
bail. Where, of course, the court
a
quo
misdirected itself materially on the facts or on the application of
legal principles, the court of appeal may consider the question
of
bail afresh (see
S
v Mpulampula
[3]
and
S
v Jacobs
[4]
).
[7]
In the notice of appeal the appellants set
out the full history of the several postponements of the bail
proceedings. It is indicated
therein, as borne out by the record,
that the initial bail application was abandoned after several
postponements at which the appellants
were represented. The renewed
application was similarly postponed, apparently due to the presiding
officer not being available
on certain occasions.
[8]
It was argued that the delay in the
proceedings was such as established exceptional circumstances
entitling the appellants to bail.
I disagree. While it is troubling
that the bail application was not prosecuted to finality
expeditiously, the delay appears to
have arisen because of several
factors, including the abandonment of the application by the
appellants. In any event the delay
had no bearing on the substantive
consideration of the application.
[9]
The appellants prosecute the appeal on the
basis that the state case against them is weak. It was submitted that
the state relied
upon an affidavit deposed to by the investigating
officer. As I understood the submission, it was that the limited
probative value
of such evidence, when considered against the
viva
voce
evidence of the appellants, ought
to have persuaded the magistrate that they had discharged the
onus
.
[10]
It is so that affidavit evidence may carry
less probative value in circumstances where the evidence is
challenged by
viva voce
evidence. However, that does not mean that it is to be disregarded.
Where an affidavit is put up by an investigating officer to
explain
the nature of the case against an accused person, such evidence may
nevertheless be decisive. The magistrate was alive
to the fact that
the state had relied upon an affidavit deposed to by the
investigating officer. The magistrate, correctly in my
view, weighed
all of the evidence, including the alleged alibis of the appellants.
[11]
The evidence deposed to by the
investigating officer sets out the evidence available to the state.
That evidence consists of the
testimony of the complainant and her
boyfriend. The affidavit recounts their version of events, detailing
the circumstances of
the kidnapping and that they were held at a
deserted house. It explains that this is where the rapes occurred and
that the police
were alerted when the complainant’s boyfriend
managed to escape. Of significance, it explains that the appellants
are known
to both complainants and that they were pointed out upon
their arrest.
[12]
It was argued that this evidence of
‘identification’ constitutes mere say-so. At the stage of
bail proceedings it is
necessary only to outline the nature of the
state’s case and the type of evidence that the state has
against the accused
person. It is not required of the state to
prove its case. Such evidence as to the nature and strength of the
state case
serves to establish a factor which is taken into account
in determining whether or not exceptional circumstances exists which
warrant
the release of the accused person on bail.
[13]
It was argued on behalf of the appellants
that the magistrate had approached the question of bail on an
incorrect footing; that
he had paid undue attention to the
seriousness of the offence and had failed to accept that the
appellants’ personal circumstances,
lack of previous
convictions and that permanent addresses mitigated any potential
flight risk.
[14]
In regard to the third appellant it was
submitted that the magistrate had failed to take into consideration
his the ill-health and
that this alone qualifies as an exceptional
circumstance. There is no substance in the submission. The
magistrate’s judgment
deals fully with the evidence of the
third appellant relating to his osteo-arthritis, for which he
requires medication. The judgment
deals with the availability of
treatment and medication in the prison and accepts, on the evidence,
that access to medication does
not pose a difficulty and that, to the
extent required, externally supplied medication can be made
available. The judgment also
deals with the prison conditions. All of
the factors upon which the third appellant relied were taken into
account. It was found
however, in my view upon a sound evidential
basis, that the third appellant has sufficient and proper access to
medical care whilst
in custody and accordingly that his medical
condition does not constitute an exceptional circumstance.
[15]
It was further submitted that the
magistrate had failed to take into account the alibi evidence
presented by the third appellant
as well as the evidence relating to
a petition signed by members of the community urging the release of
the third appellant. In
both these submissions, counsel was
incorrect. The judgment refers to this evidence. Indeed the judgment
deals with the evidence
of each of the appellants as well as that
presented on their behalf.
[16]
The challenge to the magistrate’s
ruling, although couched on the basis of error or misdirection, does
not in fact posit a
misdirection in relation to the facts. The
challenge to the magistrate’s decision is framed in more
general terms, namely
that the magistrate was wrong. The argument
proceeded along the lines that the magistrate ought to have found
that exceptional
circumstances were present and was accordingly wrong
in finding that the appellants had not discharged the
onus
.
[17]
In respect of the first and second
appellants, their challenge to the state case was premised upon
mutually supporting alibis to
the effect that they were in each
other’s company drinking at the place where they both work.
This latter place, it transpired,
was a shop which also served as a
drug-post. In my view, even taking into account the form in which the
state evidence was presented,
the magistrate cannot be faulted for
considering that the challenge to the state case did not constitute
an exceptional circumstance.
In respect of the evidence relating to
where the first and second appellants live, the magistrate was
equally correct in finding
that the evidence established no more than
that the appellants spent some time at those addresses but were not
always there.
[18]
It was argued that the magistrate did not
consider the range of factors set out s 60 (4) – (9) of the
Act. The judgment however
specifically refers to the relevant
sections which are to be considered in terms of s 60 (11). While each
of the factors is not
enumerated and addressed in the judgment, it
cannot be found that the magistrate did not give consideration to
them.
[19]
It
should be borne in mind, as was stated in
S
v DV
[5]
,
upon which appellants placed reliance, that,
An applicant in a
bail application is given broad scope to establish the requisite
circumstances, whether they relate to the nature
of the crime, the
personal circumstances of the applicant (accused) or anything else
that is particularly cogent. (See
S v Dlamini; S v Dladla and
Others; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC)
(1999 (4) SA 623)
;
1999 (7) BCLR 771)
, in particular paras 75 and 76 thereof.) Personal
circumstances to an exceptional degree may lead to a finding that
release on
bail is justified. (See
S v Rudolph
2010 (1) SACR
262
(SCA).)
In the context of s
60 (11) (
a
), the exceptionality of the circumstances must be
such as to persuade a court that it would be in the interest of
justice to order
the release of the person of the accused. A certain
measure of flexibility in the judicial approach to the question is
required.
(See
S v Mohamed
1999 (2) SACR 507
(C) ([1999]
4 All
SA 5330
at 513f-515f.)
[20]
The magistrate addressed the evidence which
was adduced by the appellants in order to discharge the
onus,
but nevertheless came to the conclusion that the appellants had not
established that it was in the interests of justice that they
be
released on bail. I have already pointed to the fact that the
appellants could point to no material misdirection in this regard.
Nor could I discern any such misdirection upon consideration of the
judgment and the evidence before the magistrate. To interfere
with
the magistrate’s refusal of bail in such circumstances would
require that I be satisfied that the magistrate had exercised
the
discretion wrongly. I am not so satisfied. It follows that the appeal
cannot succeed.
[21]
I therefore make the following order:
The appeal is dismissed.
G. G. GOOSEN
JUDGE OF THE HIGH COURT
Appearances:
For the Appellants
Mr. M. Moolman
Attorney
For the
Respondent
Adv.
G. Baartman
Director of
Public Prosecutions
[1]
1979
(4) SA 218
(D) at 220E-H
[2]
1996
(1) SACR 212
(W) at 221h
[3]
2007
(2) SACR 133
(E) at 136e
[4]
2011
(1) SACR 490
(ECP) at para [18]
[5]
2012
(2) SACR 492
(GNP) at par [7] – [8]