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[2020] ZAECPEHC 21
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Majola v S (CA&R 15/2019) [2020] ZAECPEHC 21 (25 June 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
REPORTABLE/NOT
REPORTABLE
Case
No: CA&R 15/2019
In
the matter between:
NONTUTHUZELO
MAJOLA
Applicant (Accused 3)
and
THE
STATE
Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
This is an application for bail in terms of section 60(11) of the
Criminal Procedure
Act
[1]
(the
CPA) brought before me, allegedly on new facts. The applicant
initially, brought two bail applications before the magistrate
court,
i.e. on 31 May 2018 and 27 August 2019, respectively. On both
occasions, bail was refused. On 4 December 2019
the applicant
brought an appeal against such refusal before this court. For
reasons not pertinent herein, that appeal was
either withdrawn or
abandoned. The matter then served before me on affidavits based
on new facts.
[2]
The applicant was according to her papers arrested on 11 May 2018 on
numerous charges
which relate to Schedule 6 offences amongst others
robbery with aggravating circumstances. It is inevitable that I
should
revisit the two formal bail applications she initially brought
in order to determine the new facts relied upon before me.
B.
The First Bail Application
:
[3]
In the first bail application, the applicant relied on the following
facts amongst
others.
“
I
have been informed as follows:
-
That I have been linked to this offence via
cellphone tracking, phone calls received/made and messages to the
co-accused who were
directly involved in the robbery.
I will respond further
after the State has led their evidence should it be necessary if any
further evidence needs to be disputed.
I wish to place a defence
before the Court. In my bail application I have been advised
that what I say can be used against
me in a trial:
(i) During
the period of late April 2018 I received a phone call from the person
who is unknown to me, but identified
himself as Gcuwa, and he
informed me that he is calling to enquire about a job. He
informed me that he got my number from
my brother-in-law who stays in
Johannesburg.
He
kept on calling me asking for a job for him. I thought he meant
a job at Fidelity. I said to him that I do not know
of a job
for him and I do not work at Fidelity anymore. He said I must
not play games and that he knows I still work at Fidelity.
I
then hung up the phone and got worried and fearful as this person
seemed to know a lot about me.
This
man kept on calling me and I became worried. I then decided to
seek advice from my crewman Samba who I work with.
He told me
that the next time he calls that he will speak to him.
The
man then phoned again. I gave the phone to Samba. They
then spoke for a while on the phone. Samba then informed
me
that they want to rob us. I told him they cannot do that.
He told me to shut up and not tell anyone as these people
will harm
me and possibly kill me. He said I must just do nothing and it
will be fine and no harm will come to me.
Out of fear I did
nothing, and I was not sure if it was the truth and if it was really
going to happen.
A few
days later, the day of the robbery, this man called early in the
morning and asked for Samba. I said I was not with
him.
They then told me to tell Samba to call them when I am with him.
I told Samba and he called them.
I
carried on with my work during the day, and when we got to the garage
Samba asked me for my phone and sent a message. I
then realised
that they are going to do the robbery now. Samba said I must do
nothing and just let them rob him. He
said that they are not
going to shoot anyone if I cooperate and that they will not shoot
me. Out of fear and duress I then
cooperate and did nothing.
I did not want to be shot and killed by these people or get Samba or
other people shot.
They
committed the robbery and then Samba came to me and he said I must
pretend to chase them as there is cameras. We then
chased them
but they got away.
I
heard the police caught them . . .
. . . and shot one of
them and he died. I am still very fearful of these people and I
do not want to say much more unless
I can be protected by the State.
I am further willing to help the State as much as I can if I am
protected.
I
wanted to tell the magistrate what happened after I was arrested, but
I got emotional and scared. I therefore deny that
I was
involved in this robbery . . .” (
Sic
)
. . . Sorry . . .
“
And
all I did was not act, out of fear. I request the court to
understand that in my type of employment there is always this
underlying fear that robbers will shoot and kill us. It is a
reality in South Africa and this has happened too many of my
colleagues.
Based
on my defence briefly described above, I have confidence in my
defence and therefore will not flee from Court”. (
Sic
)
[4]
In summary, the applicant highlighted the exceptional circumstances
prevailing then
as follows:
“
The
State only links me to this offence via cellphone data. There
is no witnesses that identifies me or links me to the commission
of
this offence, and or links me to the common purpose with the
co-accused. The CCTV footage of the robbery will clearly
show
that I played no active role in the robbery. I have actively
taken the decision to disclose my defence to the Court
and not hold
my cards close to my chest. I only failed to act out of fear
for my life and duress”. (
Sic
)
[5]
In response to the allegations by the applicant, the State tendered
the evidence of
the investigating officers Zane Bosch. In
summary, his evidence was a response to the applicant’s
affidavit.
He stated that there is a strong case against the
applicant based on direct and circumstantial evidence. The
cellphone records
established that there was communication between
the applicant and some of the suspects prior and immediately before
the commission
of the robbery, so he testified. He further
rejected the evidence by the applicant that her cellphone was used by
Samba because
the latter was at the back of the security vehicle.
He stated that the applicant played an integral part in the planning
of the robbery. The applicant should have rammed the robber’s
motor vehicle as expected in terms of their protocol but
she failed
to do so, so stated the investigating officer.
[6]
The applicant was given a right to file a “replying affidavit”
by the
magistrate wherein she stated that the State failed to
precisely mention how she colluded with the other accused. She
further
stated that the confession made by the other accused which
allegedly implicates her, is inadmissible against her. She
admitted
that the State was correct in saying she did communicate
with some of the accused before the robbery. She repeated that
she
was approached by some people to be part of the robbery but she
refused. She did not report that to the police because she
feared for her life and that of her family. She admitted that
she became emotional when she appeared before a magistrate
who was to
obtain a confession from her. The magistrate abandoned taking
the confession.
[7]
The magistrate, having had regard to the principles of bail, in
particular the onus
of proof being on the applicant to establish
exceptional circumstances on a balance of probabilities refused the
application.
No appeal was lodge pursuant to his or her ruling.
C.
The Second Bail Application
:
[8]
On 13 September 2019, Mr Harker, who appeared on behalf of the
applicant before me,
brought another bail application before the same
magistrate on new facts. He highlighted the new facts as
reflected on the
applicant’s affidavit. Though the new
facts are prolix, I shall deal with them as they appear in the
papers.
The reason shall be clear when I evaluate the evidence
on new facts before me. The affidavits in part reads:
“
That
I applied for bail on new facts as my legal representative received
the docket and the new facts that have arisen therefrom
are the
statement of Mr Saba, the polygraph tests of Sabo and myself, the
attempted confession to the magistrate, the affidavit
of Constable
Quboka and the affidavit of investigating Officer Zane Bosch. . .
That I would like to
bring an application on new facts therefore on the following grounds:
That while evidence is
led of the video footage of my not chasing the robbers in the
affidavit of Sabo referred to as Samba in the
bail proceedings, it
does not state anything from which a negative inference can be drawn
regarding how I pursued the robbers and
co-accused herein.
The State contended that
from the video footage it can see that I did not make a genuine
attempt to pursue the robbers. In
this regard I annex hereto
Annexure B which is what Andile Sabo stated in his statement that
traffic had obstructed my ability
to pursue the robbers.
That Stefanie Louw, the
owner of the garage stated that the robbers wore no masks and gloves
from which it is evident there was
no need for anyone to assist them,
least of all me as they were not concerned about hiding their
identity and the manner in which
the robbery was conducted could have
been done without any information or assistances by simply observing
the daily pick-ups.
That I could not have
been accused or participated in such planning or execution of such a
robbery and therefore deny that I have
conspired with the robbers in
this matter.
That it is therefore
evident that this evidence corroborates my version of events of my
being under duress, and that under these
conditions I acted out of
fear for my very life in the sense that I felt that if I reported the
incident they would kill me as
they would go to any lengths. . . .
That the reason why the
State has identified and charged me is that of the telephone
communication between my mobile phone and that
of the co-accused
Gcuwa and the polygraph test in which I was judged to be dishonest,
which was administered on the 17
th
May 2018 and is annexed
as Annexure C.
That
the two reasons mentioned above in light of exceptional circumstances
and the interests of justice are very relevant as is
the confession
that the magistrate declined to complete. . . .
That the content of the
confession taken down in front of the magistrate is a complete
fabrication created by the police and thus
I burst into tears because
I was bullied into the situation.
That in respect of the
polygraph test the following is pertinent:
That
in respect of the polygraph test annexed as Annexure D that I contend
that I answered the questions as best I could despite
being under
duress not only from the co-accused but also from the employer as I
stood to lose my job, which in fact did occur.
A polygraph test
is administered by a polygraphist and measures the physiological
indicators such as blood pressure, pulse, sweat
glands and
cardiovascular responses when a series of questions are posed to the
subject. The test is used to verify the truthfulness
of the
subject’s answers to the questions posed.
That
the State made no mention of this polygraph test in the original bail
application.
That
a polygraph test is not regulated by law in our country and the
judicial or presiding officer I am informed has a discretion
to admit
such evidence and with regards to what weight should be attached to
such evidence.
That I felt that the
polygraph test infringed my right to be presumed innocent and my
right not to incriminate myself but if I didn’t
subject myself
to the polygraph test I would be dismissed from employment.
That the confession of my co-accused, Mr Sonwabo
Gcuwa, as obtained
by the investigating officer was not (indistinct) evidence by means
of section 217(1) of the CPA which provides
that such a confession
shall be admissible into evidence if it is proved to have been freely
and voluntarily made by a person in
his sound and sober senses and
without having been unduly influenced thereto.
It will be contended that
this confession or admission cannot be used in evidence by one
co-accused against another at the trial,
and that this will further
weaken the State case against me. . . .
That on the 11
th
May 2018 I was taken to Shirley Street and interviewed and arrested
by Mr Zane Bosch of the SA Police Services, that I was verbally
abused and treated threateningly, resulting in the statement that was
made under duress and which I then did not confess to the
events as
stated in the would be confession before the magistrate. . . .
That
I would need and am entitled to the facilities to prepare my defence
which facilities can only be realistically achieved when
one is not
confined to imprisonment.
That
I feel that I am being used as a scapegoat by the SAPS but no motive
is advanced as to why I would participate in a robbery
and place my
career in jeopardy under the current economic conditions in our
country”. (
Sic)
[9]
The State opposed the application by filing an affidavit by the
investigating officer.
The State argued that there were no new
facts presented by the applicant.
[10]
The magistrate in his judgment reasoned as follows:
“
In
the matter before the court polygraph testing was and attempt
(indistinct) of the applicant to make a confession to the
magistrate.
Advocate argued that these were new facts. I
disagree with this submissions, these facts were addressed by the
State.
See the affidavit of the investigating officer in the
first bail application.
As it is stated in the
case of
PETERSEN
the court has to be satisfied that the facts
the applicant relies on the fact that the applicant relies on are
indeed new facts
and that they are relevant to the purpose of a new
bail application. Such facts are not constitute or reshuffling
(indistinct)
of an old evidence or embroidering on it.
Furthermore, the purpose of adducting new facts should be not to
address the problems
in a previous application or to fill in gaps in
the previously present evidence.
There has been nothing
new which comes to the fore after the first application (indistinct)
to the evidence presented in court in
the first application regarding
the exceptional circumstances of the applicant. . . .
It
is therefore the finding of this court that the application of the
applicant has failed to present new facts and therefore her
application for bail on new facts has failed and is
REFUSED
”.
(
Sic)
[11]
No appeal lies against the judgment of the magistrate even in respect
of this judgment.
D.
The Bail Application in this Court
:
[12]
The application before me is purportedly premised on facts which were
not canvassed in the two
previous occasions. It would be a far
cry if I were to find that new facts have been presented before me.
For purposes
of illustration I shall not extensively refer to the
founding affidavit as I did to the previous applications before the
magistrate.
[13]
The founding affidavit be in this matter repeats all the facts the
applicant alluded to in the
two previous application especially in
regard to when she started to work for Fidelity Security Services,
how she was contacted
by unknown people who recruited her to be part
of the robbery, what took place before and after the robbery. She
again stated
that she acted under duress as she feared for her life
and that of her family members. She repeated how Saba sent
messages
using her cellphone in communicating with the robbers.
She again spoke to the fact that the State case was not strong
against
her, especially if one had regard to the cellphone records,
the polygraphy test result, the procedural injustice in the manner in
which her statements and confession to the magistrate were obtained.
She again addressed the issue of common purpose, the
planning before
the robbery was perpetrated and the implication of the confession
made by her co-accused about her. The detail
and the
argumentative manner provided in presenting those issues is
unnecessary in bail applications. I shall refer to a
few
instances where such is glaring in his affidavit. The
applicant stated:
“
22.
That in respect of the telephonic records the following pertinent.
22.1
In respect of the telephone communication, I am duly informed that it
falls within the classification
of similar fact evidence as every
person who has communicated with the robbers cannot all be
conspirators nor have a common purpose.
22.2
That consequently it is imperative that the content of text messages
and telephone calls be placed
before the court regarding conspiracy.
22.3
For this reason, the investigating officer who has failed to provide
the text messages showing
my assisting to plan a robbery as well as
no contents proving any conspiracy must be considered by the court as
an unproven version
of events.
22.4
That I further cooperated with the police as much as I could despite
their interrogations and
handed over my mobile phones despite the
fact that I was not informed of my right to legal representation
beforehand.
22.5
That the contents of text message and telephone calls are not in
existence although there are
two references to them by the state in
the affidavit of Mr Zane Bosch, the investigating officer.
22.5.1 That
the state does not show that there was any planning on my part nor
what the planning involved.
22.5.2 That
since the state has indicated a conspiracy, what exactly was planned
and how did I conspire as I did not
provide any material information
and nor was any necessary for the perpetrators to have committed the
robbery.
22.5.3 That I
deny that I was involved in any planning and that I deny that I was
in conspiracy with any persons or
my co-accused and did not stand to
gain any advantage.
22.5.4 That
the content of the confession taken down in front of the magistrate
is a complete fabrication and thus I
burst into tears because I was
bullied into the situation.
22.6
That the state made no mention of a polygraph test in the original
bail application, which was
administered, and the result made known
before my being interviewed by the SAPS.
22.7
That I felt that the polygraph test infringed my right to be presumed
innocent and my right not
to incriminate myself but if I didn’t
subject myself to the polygraph test I would be dismissed from my
employment.
22.8
That the confession of my co-accused Mr Sonwaba Gcuwa as obtained by
the investigating officer
was not placed into evidence by means of
section 217(1) of the CPA, which provides that such a confession
shall be admissible into
evidence if it is proved to have been freely
and voluntarily made by a person in his sound and sober senses and
without having
been unduly influenced thereto.
22.9
It will be contended that this confession or admission cannot be used
in evidence by one co-accused
against another at the trial and that
this will further weaken the state’s case against me.
22.10
I am duly informed that the test for accepting evidence is not on a
balance of probabilities but on whether
the state has proven beyond a
reasonable doubt, a much higher standard which has to be met”.
[14]
The issues stated above were repeated again in ensuing paragraphs
with almost the same detail.
The applicant went home detailing
the aggression on the part of some of her co-accused in an effort to
highlight the reason why
she decided not to report these planned
robbery to the police. Under the cloak of new facts the
applicant repeated her personal
circumstances with the same vigour as
she did in her first two applications. In essence, she repeated
the factors concerned
by section 60(4) of the CPA dealt with
previously. In sum there is not a single new factor which the
applicant dealt with.
[15]
I cannot fathom out the reason why the applicant raise the issue of
the confessions and the polygraply
tests. These issues are not
relevant to the bail proceedings and even for trial for that matter.
She did not confess
to anything and the State does not even rely on
it to establish that it has a strong case against the applicant.
The outcome
of the polygraph test is also not relied upon by the
State and bears no relevance in this matter. In any event, as I
already
found, they were raised before and the court rejected them.
In
S
v Peterson
[2]
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”.
[16]
For those reasons, the applicant has failed to establish new facts
and the application stands
to be dismissed.
[17]
I make the following order.
The
application for bail is dismissed.
______________________
M MAKAULA
Judge
of the High Court
Appearances
:
Counsel for the
Applicant:
Adv B Harker
Instructed
by:
Wayne MacGear, Aneesah Campbell Attorneys.
Counsel for the
Respondent:
Adv Z Swanepoel, Director of Public Prosecution
Port
Elizabeth.
Date of
hearing:
2 June 2020
Date judgment
reserved:
2 June 2020
Date
judgment delivered:
25 June 2020
[1]
51
of 1977.
[2]
2008
(2) SACR 355
(C) at par [57].