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[2020] ZAECPEHC 43
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Omotoso v S (CC15/2018) [2020] ZAECPEHC 43 (4 November 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
CASE
NO. CC15/2018
In
the matter between:
TIMOTHY
OMOTOSO
Applicant
and
THE
STATE
Respondent
JUDGMENT
ZILWA J
[1]
In this application the applicant, Timothy Omotoso, seeks the
following orders:
(i)
Directing that an investigation been held in terms of section 342A(1)
of the
Criminal Procedure Act Number 51 of 1977, into the delay in
the completion of the trial proceedings in the above Honourable
Court’s
case number CC15/2018.
(ii)
Granting the applicant bail in the said case in an amount and on such
conditions
as the above Honourable Court may deem appropriate.
(iii)
Granting the applicant further and / or alternative relief.
[2]
The application is opposed by the Respondent (The State), which is
represented by Mr Ntelwa assisted
by Mr Mdolomba and Ms
Jodwana-Blayi. The applicant is represented by Mr Price SC, who
appears with Mr Dauberman.
[3]
In support of his application the applicant has filed papers
comprising of founding and replying papers
with annexures which are
cumulatively in excess of 450 pages. The applicant also led
oral evidence 6 witnesses. Besides
filing its answering papers
comprising of some 30 odd pages the respondent also led oral evidence
of 3 witnesses. Thereafter
both parties filed further heads of
argument before the matter was orally argued before me.
(i)
The relief sought in prayer 1
[4]
I consider it timely to first deal with and dispose of the relief
sought in prayer 1 of the applicant’s
notice of motion, whose
terms are set out in paragraph [1] (i) above. Thereafter I will
deal with the bail application proper
as sought in paragraph [1](ii).
[5]
At the commencement of the hearing I enquired from Mr Price as to
whether it would be appropriate for
this Court, rather than the Court
that is seized with the main trial, to deal with the issues and the
relief sought in prayer 1.
His emphatic response was that this
Court is the proper Court that should deal with such relief and there
is no requirement that
such application should serve before the trial
Court. He further submitted that such relief is often sought
before Presiding
Officers other than those seized with the main case
and that it is actually dangerous for the trial court to deal with it
as it
might make credibility findings that may affect their role in
the main proceedings. He submitted that his reading of the
relevant section is that any Judge of the Eastern Cape Division, Port
Elizabeth, can deal with the application and the relief that
is
sought in prayer 1. However, he was not able to refer to any
legal authority or case law in support of his submission.
[6]
Section 342A(1) of the Criminal Procedure Act reads
“
A
Court
before which criminal
proceedings are pending
shall
investigate any delay in the completion of proceedings which appears
to the Court to be unreasonable and which could cause
substantial
prejudice to the prosecution, the accused or his or her legal
advisor, the State or a witness”
(emphasis
added).
[7]
As indicated above, Mr Price’s argument at the commencement of
the proceedings was that the section
does not necessarily require the
investigation to be done by the Court that is seized with the pending
criminal proceedings or
trial, it can be done by any other Judge of
this division. I disagree with the interpretation given to the
subsection by
Mr Price. To me the wording of subsection 342A(i)
leaves no room for any other interpretation but that it can only be
the
Court before which the relevant criminal proceedings are pending
that should do the investigation once it appears to it that there
are
or there may be unreasonable delays in the completion of the
proceedings pending before it which could cause substantial prejudice
to the prosecution, the accused or his or her legal advisor, the
State or a witness. In my view the rationale for the wording
of
the subsection is not hard to find. It is the Court that is
seized with the criminal proceedings in issue that is in a
prime
position to formulate the view that the completion of the proceedings
before it is unreasonably delayed and that such delay
could cause the
substantial prejudice referred to in the subsection. Moreover,
the factors that are to be considered by the
Court in considering the
question whether the delay is unreasonable, which are set out in
subsection 2 of the section, are pre-eminently
factors that can be
properly be considered by the Court before which the actual trial is
pending or proceeding. Subsection
3 deals with the reliefs or
orders that may be issued by the Court upon finding that the
completion of the proceedings is being
unreasonably delayed in order
to eliminate the delay and any prejudice arising from it or to
prevent any further delays or prejudice.
Such reliefs include;
(a)
refusing further postponement of the proceedings;
(b)
granting a postponement subject to any such conditions as the Court
may determine;
(c)
Where the accused has not yet pleaded to the charge, that the case be
struck off the roll and
the prosecution not be resumed or instituted
de novo
without the written instruction of the
Attorney-General;
(d)
where the accused has pleaded to the charge and the State or the
defence, as the case may be, is unable
to proceed with the case or
refuses to do so, that the proceedings be continued or disposed of as
if the case for the prosecution
or the defence, as the case may be,
has been closed.
In
my view the nature of those reliefs is such that they can only be
properly granted by the trial court that is seized with the
trial,
not a different court. The submission by Mr price that the
section should be interpreted to mean that another court
other than
the court that is seized with the trial may do the investigation and
grant the reliefs envisaged in the section simply
because subsection
(1) refers to
a
court, rather than
the
court before which criminal proceedings are pending, and the fact
that sub section (3) entitles the court to issue any order that
it
deems fit in order to eliminate the delay and the resultant prejudice
is, in my view, without substance. Such interpretation
runs
foul of the provisions of the section, read and viewed holistically.
For instance it is unthinkable that another Court
other than the
Court that is hearing the main case can refuse a further postponement
of the proceedings where an application for
such postponement is
brought by one of the parties as envisaged in subsection (3)(a) or to
order that the proceedings be continued
and be disposed of as if the
case for the prosecution or the defence has been closed as envisaged
in subsection (3)(d). It
is manifest in my view that these are
orders that can only be properly granted by the Court that is seized
with the trial and not
any other Court.
[8]
Moreover, my reading of the section holistically is that the
investigation envisaged in the section
would be appropriately done by
the Presiding Judicial Officer in a trial that is pending before it
where one of the parties, be
it the State or the defence, has brought
an application for the matter not to proceed on a scheduled date, for
whatever reason.
If the Presiding Officer then formulates the
view that the matter is being unduly delayed and that such delay is
prejudicial, he
or she should then invoke the provisions of the
section and make one of the orders referred to in subsection (3).
It is for
that reason that Revelas J in
S
vs Hewu and Others
[1]
ordered that “
the
magistrate who is to preside in the matter is directed to hold an
enquiry in terms of section 342A of the Act in the event that
a
further postponement of the matter is sought by the state”.
It is noteworthy that the main trial in the present matter was set
down to proceed on the date of commencement of this application.
None of the parties had given an indication of an application for its
postponement, meaning that but for this application it would
have
proceeded. The only reason it had to be postponed was this
application.
[9]
On final argument Mr Price specifically stated that he had no further
argument in support of prayer
1, despite having earlier undertaken to
finally argue the relief after he had led oral evidence in support
thereof. He conceded
that no such oral evidence was led.
[10]
For the above reasons I am of the view that the seeking of the relief
in prayer 1 of this application before this
Court is ill-founded and
it cannot succeed.
(ii)
The relief sought in prayer 2
[11]
The relief sought in this prayer constitutes, in essence a renewed
bail application based on new facts or changed
circumstances.
This is a perfectly permissible procedure where a bail applicant had
been refused bail in an earlier application
and he is of the view
that there are new facts that have emerged since his last bail
application that had failed. In this
form of application the
applicant has to convince the court that there are indeed new facts
and that such new facts point in the
direction that he should be
granted bail. As the term
“
new
facts”
clearly denote, in the renewed
application the applicant is not given
carte
blanche
to regurgitate the facts that
existed in the previous unsuccessful bail application possibly with
the hope that the Presiding Officer
in the renewed bail application
may have a different view and grant bail.
[12]
In
S
v Petersen
[2]
it was held (at [57]) that 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. This means that
a renewed bail application can only be brought on the
basis of new
facts that have since come into being and circumstances that might
have changed since the last bail application was
brought and
refused. In
S
v Vermaas
[3]
Van Dijkhorst J stated the proper approach to a renewed bail
application on new facts as follows (at 531E - F):
“
Obviously
an accused cannot be allowed to repeat the same application for bail
based on the same facts week after week. It
would be an abuse
of the proceedings. Should there be nothing new to be said the
application should not be repeated and the
Court will not entertain
it. But it is a
non sequitur
to argue on that basis that where there is some new matter the whole
application is not open for reconsideration but only the new
facts.
I frankly cannot see how this could be done. Once the
application is entertained the Court should consider all
facts before
it, new and old and on a totality come to a conclusion. It
follows that I will not myopically concentrate on
the new facts
alleged”.
This
means that in dealing with a renewed bail application on new facts it
is necessary to compare the
“
new
evidence or facts”
with the evidence
or facts presented in the earlier bail application. It is on
the basis of the law expounded above that this
application will be
adjudged.
[13] A full
record of the proceedings in the previous bail application that was
brought by the applicant at the Port
Elizabeth Magistrate’s
Court has been placed before me. So has the Magistrate’s
judgment dated 9 June 2017 refusing
the applicant bail on the basis
that he had failed to discharge the
onus
put on him by the
provisions of section 60(11)(a) of the Criminal Procedure Act of
adducing evidence which satisfies the Court that
exceptional
circumstances exist which in the interest of justice permit his
release. Subsequent to the dismissal of the applicant’s
initial bail application by the Magistrate on 9 June 2017 the
applicant noted an appeal against the judgment. Before the
appeal was heard the applicant launched a second bail application
based on what he regarded as new facts on 30 August 2017.
That
application was again refused by the Magistrate on 9 September 2017
on the basis that the alleged new facts were, in fact,
not new.
The bail appeal against the Magistrate’s judgment refusing bail
in the first bail application was heard in
this Court by Goosen J who
delivered judgment on 30 November 2017, dismissing it. On 26
February 2018 an application for
special leave to appeal was made by
the applicant to the Supreme Court of Appeal against the judgment of
Goosen J. The application
was refused by the Supreme Court of
Appeal on 4 April 2018.
[14]
At the commencement of these proceedings before oral evidence was led
and after I had read the application papers
I requested Mr Price to
stipulate in point form the alleged new facts on which the present
application is brought. He paraphrased
the new facts that form
the basis of this application as follows:
(i)
There is evidence that the applicant is not a flight risk and many of
the issues that were raised
in the previous application supporting
the likelihood of him being a flight risk no longer exist;
(ii)
The case against the applicant is discernibly weak;
(iii)
The progress of the case is unjustifiably delayed;
(iv)
Evidence will be adduced to show that the applicant never played any
role or ordered anyone to interfere
with the State witnesses;
(v)
One of the State Advocates, Advocate Cerfontein, who had initially
formed part of the prosecution team,
had withdrawn from the case
citing
“
ethical reasons”,
which suggests serious injustices in the
prosecution of the case that may lead to it coming to an abrupt end.
[15] Upon
being pointed to the respondent’s heads of argument expatiating
the respondent’s understanding
of what was being contended to
be new grounds by the applicant, namely:
(a)
That the applicant has successfully reviewed the decision of the
Department of Home Affairs to declare
him a prohibited immigrant and
is currently awaiting another decision from the Department;
(b)
That the applicant’s physical and health condition is affected
by his continual incarceration;
(c)
The risk of the applicant contracting the corona virus in prison is
high;
(d)
To date there are no complaints of intimidation from the State
witnesses;
(e)
The applicant has strong family, emotional and occupational ties to
this country;
(f)
The State case against the applicant is extremely weak.
Mr
Price stated that indeed those are part of the new facts on which the
present application is based.
[16]
In keeping with the legal principles enunciated above this Court will
need to determine whether any of the alleged
new facts are indeed new
and, if so, their effect, considered in conjunction with the evidence
led in the present and the previous
bail application on the question
as to whether or not they constitute the requisite exceptional
circumstances that, in the interests
of justice, entitle the
applicant to be granted bail.
[17]
In determining those issues the Court has, of necessity, to take into
account all the documentary and oral evidence
presented in both
applications.
[18]
Over and above the bulky application papers and annexures that were
filed of record together with the parties’
respective heads of
argument before oral evidence was led this Court has also heard two
weeks’ worth of oral evidence adduced
by the parties in support
and opposition of the renewed bail application. Some of that
evidence has no direct bearing on
the issues for determination in
this application but all of it has been carefully scrutinised in the
determination of whether or
not the applicant has discharged the
onus
that rests on him in terms of the provisions of section 60(11)(a).
[19]
As indicated above the first ground touted on behalf of the applicant
in support of his application is that he
is not a flight risk.
I will proceed to deal with each of the points raised as constituting
new evidence and the material
put before the Court in support
thereof.
[20] As
already pointed out above, it is contended that the applicant is not
a flight risk and the issues raised in
the previous bail application
that characterised him as such no longer exist. The likelihood
of the applicant being a flight
risk who would evade his trial
featured prominently in the previous bail application. In
dealing with this aspect in paragraph
34 of her judgment the
Magistrate expressed herself as follows:
“
Based
on the strength of the state case, the gravity of the offences as
well as if convicted, the applicant faces very lengthy sentences,
coupled with his personal circumstances I have referred to above, I
find that there is a likelihood that if he is released on bail
he
might attempt to flee and evade his trial”
[21] On
appeal Goosen J in paragraph 31 of his judgment stated:
“
In
regard to the question as to whether the evidence establishes a
likelihood that the appellant would evade trial, the magistrate
took
into account several relevant factors. She considered
inter-alia whether the appellant has a fixed address; whether
he owns
assets; his ability to travel; and generally, his ties to the
country. The evidence established that the appellant
had
recently rented a property in Durban. Although Plaatjies stated
that he could not find this address, the magistrate nevertheless
accepted that that was where the appellant resides but noted that the
appellant had only recently moved into the property and that
he gave
no additional information regarding his prior residence. The
magistrate correctly found on the evidence that the
appellant has no
fixed assets in the country and that his only assets comprise the
ownership of certain motor vehicles. No
evidence relating to
the nature of his interest in the company was presented by the
appellant.”
[22]
The documentation before me shows that some of the shortcomings
referred to above have since been covered.
The evidence of the
applicant’s wife established that she and the applicant’s
youngest son still reside at the address
at No. 10 Loch Ness Lane,
Royal Palms, Timley Manor, Durban and that the lease agreement for
the property is signed by both she
and the applicant. They had
moved into the property 51 days before the applicant was arrested.
The applicant’s
wife also produced a document which reflected a
number of residential premises that they had rented and resided on
since their
arrival in this country before taking residence at their
present address. In the second bail application in the
Magistrate’s
Court documentation was produced which reflected
the nature of the applicant’s interest in the company in which
he holds
a directorship. I may mention that this information
was already known and available to the applicant at the time that he
launched his first bail application. No tangible reason has
been advanced as to why it was not produced at that stage.
It
will be recalled that a subsequent bail application on new facts
cannot be used as a vehicle for closing gaps or shortcomings
in the
evidence presented in the previous bail application where the
relevant material was already available and could have been
used at
that stage.
[23]
Most of the factors referred to in paragraph 34 of Goosen J’s
judgment that militated against him being granted
bail are, in my
view, still fully applicable. If anything, the applicant’s
situation with regard to the likelihood
of him being a flight risk
has in fact worsened. In its papers the respondent has annexed
a document dated 14 September 2020
declaring the applicant a
prohibited immigrant in terms of section 29(2) of the Immigration Act
of 2002 (Act 13 of 2002).
This means that as things presently
stand the status of the applicant in this country is that of a
prohibited immigrant who is
liable to be deported from the country in
terms of the Act. That position will remain extant until it is
challenged, reviewed
and set aside either administratively or by a
Court of competent jurisdiction. The applicant’s wife
testified that
hers and her son’s lawful sojourn in this
country depends entirely on the lawfulness of the applicant’s
status of being
legally entitled to remain in the country. This
indicates that since, as things presently stand, the applicant is a
prohibited
immigrant in this country, such prohibition automatically
extends to them. Just like the applicant they are liable to be
deported from the country in consequence of the applicant’s
status. On the evidence on record the applicant’s
wife
and son are his only family in this country and if they are deported
the applicant would have no other family ties in the
country.
Mr Price has submitted that the applicant’s present status as a
prohibited immigrant is of no moment or relevance
to the
determination of this application. I disagree. To me it
has a direct bearing on the increased likelihood of
the applicant
being a flight risk without any incentive, if granted bail, to remain
in this country and stand his trial, especially
given the nature of
the sentences (Life Imprisonment)
that may
be imposed on him upon conviction. His wife and their 3
children are UK citizens. None of the children are
enrolled in
any educational institution in this country. The fact that
there may be an extradition treaty between this country
and the
applicant’s country of origin, Nigeria, is no guarantee that
the applicant may not flee and not stand trial.
He does not
have to flee to Nigeria. After all his church has branches in a
number of countries. In
S v
Petersen (supra)
a full bench noted
that the existence of extradition arrangements between South Africa
and Namibia provided no guarantee that extradition
would indeed take
place if the appellant were to “
relocate
for purposes of evading her trial”
(at [78]). In S v Vermaas
1996 (1) SACR 528
(T) 539
f
– g
Van Dijkhorst J posed and
answered the following question: ‘Is extradition a
deterrent? It may be more easy nowadays
than it was in the past
but it is not a watertight remedy and the chances are such that a
desperate man would take them thinking
that he may escape the net.’
[24]
In his original heads of argument Mr Price had submitted that “
the
fact that he (the applicant)
is an
illegal immigrant in the country is of little relevance in a bail
application. Our Courts have, on a number of occasions
indicated that to suggest that a person cannot be admitted to bail
because he is illegally in the country is in conflict with the
Constitution.”
In support
of this submission Mr Price referred the Court to the cases of
S
v Branco
2002 (1) SACR 531
(W) at 536;
S v Acheson
1991 (2) SA 805
(Nm). Since I considered the status of the
applicant in the country to have a crucial bearing on the outcome of
this application
I took time to peruse the authorities referred to
herein. However, I was unable to find anything in those cases
in support
of the submission that the Court in those cases had stated
that illegal immigrants in the country may be admitted to bail.
When I pointed this out to Mr Price he apologised for referring the
Court to the wrong authorities but insisted that he had the
correct
authorities that established the principle and that he would furnish
the Court with the correct case law before the case
is finalised.
He was unable to do so and he ended up conceding that in fact such
authorities do not exist, in so far as he
is aware. He ended up
relying on the submission that the Constitution and the Act do not
prohibit the release on bail of
a prohibited immigrant. In
passing I consider it timely to express my disquiet in legal
representatives making bold submissions
to the Court regarding a
particular legal principle and claiming the existence of numerous
case law in support thereof when in
fact they are aware of none.
I accept that this may have been a genuine error on the part of Mr
Price but it calls for caution
going forward. Courts should be
able to accept Counsel’s word about the existence of case law
in support of a legal
submission without question or compunction,
especially where specific cases allegedly in support thereof have
been cited in argument.
[25]
The applicant has also contended that the case against him is
discernibly weak and its progress is unjustifiably
delayed. On
the evidence before me I am not satisfied that these contentions have
been established. I have been informed
that only two of the
State witnesses have testified to a finish at this stage and that the
third one still has to be cross examined.
I was further
informed that there is still a large number of State witnesses that
are still to testify. In my view regardless
of how the two
State witnesses that have testified to a finish may be viewed to have
fared I am not convinced that the strength
or otherwise of the State
case can be pronounced upon at this stage. As for the alleged
delay in the progress of the case,
I do not have enough material on
record to persuade me that the delay is unjustifiable, especially
given the ravages wreaked by
the corona virus pandemic in the
progress of court cases.
[26]
On the aspect of interference with or threats to the State witnesses
I accept that there is no evidence that the
applicant intimidated or
ordered anyone else to intimidate State witnesses. However, it
cannot be ignored that since the
last bail application State
witnesses had been intimidated as the investigating officer, Warrant
Officer Plaatjies, testified before
this Court and produced
documentary proof by way of SMS messages that reflect such threats
intimidating State witnesses against
testifying against the
applicant. Indeed the uncontested evidence is that a family
member of one of those witnesses was even
shot and injured and some
witnesses had to go into hiding and enter the witness protection
program. I am of the view that
if such events could occur and
State witnesses could be terrified of testifying against the
applicant even when the applicant is
in custody, such fear on their
part would justifiably increase many fold if the applicant were to be
granted bail. That would
be a direct affront to the interests
of justice in my view.
[27]
The conjecture that Advocate Cerfontein’s withdrawal as one of
the State Counsel in the main case could be
suggestive of serious
injustices that may taint the whole proceedings in the main case
turned out to be a damp squib. Advocate
Cerfontein was called
by the applicant and she testified. Her testimony did not
support the speculation and conjecture that
was touted to justify her
being called as a witness and Mr Price was constrained to concede
likewise.
[28]
The aspect of the applicant’s physical and health condition and
the risk of contracting corona virus in prison
is based on letters
(not affidavits), from one Doctor Olaifa A.O who describes himself as
a specialist family physician and one
Ian Meyer, a clinical
psychologist. The gist of Dr Olaifa’s letter is that the
applicant has been his patient since
May 2017 after his arrest and
detention at Port Elizabeth Correctional Facility. He states
that the applicant was diagnosed
as hypertensive and suffering from
recurrent insomnia and occasional constipation. He describes
the applicant’s condition
as relatively stable in the last
three years. He states that save for the hypertension when he
visited him on 22 December
2018 at St Albans Correctional Facility he
found the rest of his systemic observation to be normal. On 9
August 2020 he consulted
with him telephonically and he found his
mood and spirit to be low and he complained of poor social distances
practices within
the Correctional Facility. He finally opines
that given his co-morbidity of hypertension the applicant’s
risk of contracting
covid 19 infection in prison is high.
[29]
In his own letter Mr Ian Meyer states that he did a psychological
assessment of the applicant in preparation of
the present bail
application to establish whether there was new information that
warranted consideration to grant the applicant
bail. He
consulted with the applicant in prison and established that the
applicant had elected to be placed in a single cell
owing to his fear
for his safety. The applicant had explained to him the
hardships experienced in prison especially with
regard to ablution
facilities and poor diet. Mr Meyer opines that due to the
applicant’s age of 62 years and his hypertension
co-morbidity
he has increased risk of contracting Covid 19.
[30]
In my view nothing much revolves on these letters with regard to the
point under consideration, namely the exceptional
circumstances that
militate in favour of the applicant, in the interests of justice,
being granted bail. What is stated in
the letters is a general
condition that is experienced by many other prisoners and even other
members of the public outside prison.
It is a well-known fact
that a person with a co-morbidity is at a greater risk of contracting
the Covid 19 virus, whether or not
he is in custody. In my view
the two letters are not of much assistance to the applicant in his
quest for bail through the
establishment of the requisite exceptional
circumstances. The applicant is in a single cell and the
uncontested evidence
of a Correctional Services Officer on record is
that the St Albans Correctional Centre where the applicant is
detained has a strict
effective regimen in combating Covid 19
infections. The fact that to date the applicant has not been
infected with the virus,
which has infected and killed many people
both in and out of prisons, lends some credence to the assurance.
[31]
The oral evidence that was adduced on behalf of the applicant
regarding the circumstances around and the manner
of his arrest bear
no direct relevance, in my view with regard to the existence or
otherwise of the exceptional circumstances that
militate in favour of
the applicant being granted bail. The legality or otherwise of
the manner of the applicant’s
arrest is not an issue for
determination in this application. The gist of such evidence
was that before coming to Port Elizabeth
to consult with the Hawks at
their invitation the applicant’s attorneys had been assured
that he would only be interviewed
but not arrested. It was with
that reassurance that the applicant took a flight from Durban to Port
Elizabeth for purposes
of such interview. In my view his manner
of arrest would be of more significance to the present application if
the contention
was that even before he left Durban and presented
himself to the Hawks in Port Elizabeth the applicant knew, and his
legal representative
had been told that he would be arrested upon his
arrival in Port Elizabeth yet, with that knowledge, he still
presented himself
to the Hawks for arrest in Port Elizabeth.
That would have a significant bearing on his flight risk status since
it could
be justifiably argued that if he had presented himself to
the Hawks knowing that he would be arrested that would be an
indication
of a likelihood that he would stand his trial to a
finish. That is not the situation in this case hence, in my
view, the
manner and circumstances surrounding his arrest is not of
much significance in the present enquiry. Similarly, the events
surrounding the attempt by the Hawks to get in contact with the
applicant in his Bloemfontein crusade and the events that occurred
there do not, in my view, have a direct bearing on the relevant
enquiry.
[32]
As indicated above, since the applicant is undergoing trial for
offences listed in Schedule 6, he bears the
onus
imposed upon him by section 60(11)(a) to show, upon being given a
reasonable opportunity so to do, the existence of exceptional
circumstances which, in the interests of justice, permit his release
on bail. Short of him discharging that
onus
the Court is obligated to order him to be detained in custody until
he is dealt with in accordance with the law. The applicant
was
given such reasonable opportunity in this case.
[33]
It was held in
S
v Dlamini, S v Dladla, S v Joubert, S v Schietekat
[4]
that under section 60(11)(a) the law giver makes it quite plain that
a formal
onus
rests on a detainee to satisfy the Court about the existence of the
requisite exceptional circumstances that, in the interests
of
justice, permit his release on bail. In
S
v H
[5]
it was held that exceptional circumstances must be circumstances
which are not found in the ordinary bail application, but pertain
peculiarly to an accused person’s specific application.
The Court should then examine all the relevant considerations
in
totality in deciding whether an accused person like the applicant
herein has established something out or the ordinary or unusual,
which entitles him relief under the subsection. In
S
v Petersen (supra)
it was held that exceptional circumstances are generally those that
are unusual, extraordinary, remarkable, peculiar or simply
different. In his final heads of argument and in his argument
Mr Price submitted that “
the
State can produce nothing required in an examination of facts and
factors on whether or not bail should be granted anywhere
in the Bail
Act and have therefore failed in putting evidence before this Court
why the applicant should not be allowed bail.”
He
also submitted that “
the
state has failed miserably to present any evidence . . .that can
possibly lead to this Honourable Court not releasing applicant
on
bail.”
This approach is clearly wrong. The
onus
is
not on the State to convince the Court not to grant bail but on the
applicant to adduce evidence indicating the presence of exceptional
circumstances that should persuade the Court to grant bail.
[34] Having
carefully considered all the evidence before me both written and
oral, I am not persuaded that the applicant
has succeeded in
discharging the onus of showing the existence of the requisite
exceptional circumstances that, in the interests
of justice, warrants
him being granted bail in the circumstances of this case. The
conspectus of all the relevant facts adduced
in evidence both by the
applicant and the respondent, in particular the applicant’s
prohibited immigrant status, when viewed
together with the other
relevant factors referred to in the Act, leads me to the ineluctable
conclusion that the applicant has,
once again, failed to discharge
the requisite
onus
. That being the case I am left with
no other option but to refuse his bail application and, in keeping
with the provisions
of section 60(11)(a) of the CPA to order that the
applicant be detained in custody until he is dealt with in accordance
with the
law and his pending case is finalised.
[35]
In the result, the application fails and
it is dismissed
.
_________________
P ZILWA
JUDGE OF THE HIGH
COURT
BHISHO
Counsel for the
Applicant:
Adv. T N Price
SC and Adv. P Daubermann
Instructed
by:
Peter Daubermann Attorneys
Oasim
South
Pearson
Street
PORT
ELIZABETH
Counsel for the
Respondent:
Adv. N Ntelwa, Adv. Z Mdolomba,
and
Adv. V Jodwana-Blayi
Instructed
by:
Office of the Director of Public Prosecutions
PORT
ELIZABETH
Date
Heard:
06, 07, 08, 09 October 2020
12,
13, 14, 15, 16 October 2020
19,
20, 22, October 2020
Judgment
Delivered:
04 November 2020
[1]
2017(2)
SACR 67 at 76 para [27].
[2]
2008
(2) SACR 355 (C).
[3]
1996
(1) SACR 528
(T)
[4]
1999
(2) SACR 51 (CC)
[5]
1991
(1) SACR 72
(W).