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[2022] ZAECQBHC 36
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Terblanche v S (CA&R 05/2022) [2022] ZAECQBHC 36 (4 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO CA&R 05/2022
In
the matter between:
ARNOLDUS
ABRAHAM TERBLANCHE
Appellant
and
THE
STATE
Respondent
JUDGMENT
THE
COURT
[1]
The appellant approaches this court in an appeal against the refusal
by
the magistrate, Gqeberha, to grant him bail on new facts pending
the finalisation of criminal proceedings against him. It is common
cause that the appellant will be arraigned in the high court on
charges involving: conspiracy to commit murder; murder; robbery
with
aggravating circumstances; unlawful possession of a firearm; unlawful
possession of ammunition; defeating or obstructing the
course of
justice; and possession of drugs.
[2]
In essence, the charges implicate the appellant in the murder of his
wife
in relation to whom divorce proceedings were pending at the time
of the inception of the criminal proceedings against him. It suffices
for present purposes to mention that murder falls into the category
of offences listed in Schedule 6 of the
Criminal Procedure Act 51 of
1977
.
[3]
The factual history pertaining to the conduct of the proceedings in
the
court a quo since the time of the appellant’s arrest and
the course of bail applications brought on his behalf are set out
in
an appeal judgment delivered by Goosen J on 8 March 2022. That
history is not repeated herein but may conveniently be incorporated
by reference, except of course for the factual findings by the
learned judge regarding the appellant’s appeal against a first
refusal of bail on 28 January 2022 in the magistrate’s court.
[4]
On 7 April 2022 the appellant applied for bail on new facts. In a
judgment
delivered on 30 May 2022 the magistrate dismissed the
appellant’s application, and it is that dismissal which
precipitated
the present appeal to this court. Succinctly stated, the
issue lies squarely on whether the magistrate erred in his approach
to
the determination of new facts.
[5]
In his judgment the magistrate had recourse to the Concise Oxford
English
Dictionary which defined the word ‘new’ to mean
‘not existing before’. On this approach the magistrate
reasoned that the facts introduced by the appellant in his second
attempt for seeking bail were extant at the time of his first
bail
application on 28 January 2022. Accordingly, they did not constitute
new facts within the scope of the dictionary meaning
ascribed to the
word ‘new’.
[6]
In the
course of the hearing of the matter the parties advanced legal
argument on the courts’ approach to the issue of new
facts. It
is, considered edifying to quote directly from the appellant’s
heads of argument where reference is made to a convenient
summary of
guidelines and principles supported by case authority.
[1]
‘
There is no
definition of ‘new facts’ in [the
Criminal Procedure Act
51 of 1977
]. Case law, however, provides at least 5 guidelines or
principles which are of assistance:
(a)
New facts are facts that came to light after refusal of bail, and
obviously also include circumstances
which have changed since the
unsuccessful bail application was lodged. A detention period of
almost 3 years between the first and
the renewed bail application
amounts to changed circumstances constituting a ‘new fact’
(
S v Moussa
2015 (3) NR 800
(HC) at [7]); and the passage of
considerable time coupled with the State’s failure to make
progress with the investigation
of the case, can also qualify as a
new fact (
S v Hitschmann
2007 (2) SACR 110
(ZH) at 113
b
).
(b)
New facts must be ‘sufficiently different in character’
from the facts presented at the
earlier unsuccessful bail application
(
S v Mohamed
1999 (2) SACR 507
(C) at 512
b
) and ‘must
not constitute simply a reshuffling of old evidence’ (S v
Petersen
2008 (2) SACR 355
(C) at [57]).
(c)
The alleged new fact or facts must be ‘relevant for purposes of
the new bail application’:
see
S v Petersen
(supra) at
[57]). This means that there must at least be some advance indication
that the new facts, if received, would on their
own – or in
conjunction with all the facts placed before the court in the earlier
unsuccessful bail application – assist
the court in considering
release on bail afresh: see
S v Mohammed
supra at 511
h
-512
a
.
(d)
In determining whether facts are new or not, a court is inevitably
required to have due regard to the
evidence presented or information
received at the earlier unsuccessful application: see
S
v Vermaas
(supra) at 531
e-g
.
In
S v
Mpofana
1998 (1) SACR 40
(Tk) at 44
g
-45
a
Mbenenge AJ
[2]
explained that
‘whilst the new application is not merely an extension of the
initial one, the court which entertains the
new application should
come to a conclusion after considering whether, viewed in the light
of the facts that were placed before
court in the initial
application, there are new facts warranting the granting of the bail
application’.
(e)
In a situation where evidence was known and
available
to a
bail applicant but not presented by him at the time of his earlier
application, such evidence cannot for purposes of
a renewed bail
application be relied upon as ‘new facts’: see
S v Le
Roux en andere
1995 (2) SACR 613
(W) at 622
a
. In
Le
Roux
at 622
b
it was explained that in the absence of such
a rule, there could be an abuse of process (‘misbruik van
hofprosedure’)
leading to unnecessary and repeated bail
applications. An accused should not be permitted to seek bail on
several successive occasions
by relying on the piecemeal
(‘broksgewyse’) presentation of evidence. It has been
suggested that the rule is an absolute
one and should be applied
regardless of the bail applicant’s reasons for not reducing the
evidence at the unsuccessful application:
see generally
S v
Petersen
(supra) at [58]. However, it is submitted that the rule
should be applied with caution. It can hardly find application where
the
probable reason for the applicant’s failure to present the
impugned evidence at the first bail application can be attributed
to
the applicant’s bona fide misinterpretation of the probative
value of the evidence in relation to factual and legal issues
concerning bail. The right to liberty pending the outcome of the
trial of final appeal should not be frustrated by an inflexible
rule.
A bail court should be willing to examine and consider the reasons
why relevant and available facts known to the bail applicant
were not
relied on in the initial application.’
(the underlined emphasis
is ours)
[7]
The record of the proceedings in the court a quo includes the
magistrate’s
judgment. Pages 360 to 371 of Volume 3 reflects
the magistrate’s analyses of the material which the appellant
contends constitutes
new facts. The proceedings did not entail
leading oral testimony from witnesses – both parties elected to
tender their evidence
on affidavit. Electing rather to deal only with
the issue whether the appellant proved the existence of new facts,
the respondent
did not enter upon the merits of question of bail.
[8]
The
appellant’s founding affidavit dealt with the evidence which he
contended constituted new facts. With this affidavit the
appellant
mounted a challenge to the evidence put up by the investigating
officer in opposition to the appellant’s first
bail
application.
[3]
The opposing
affidavit makes reference to various persons by name and in some
instances by designation such as ‘the domestic
of Terblanche’
with mention in addition being made of the appellant’s
‘previous marriages’. Moreover the
investigating officer
states that each allegation in the opposing affidavit is supported by
evidence contained in affidavits.
[9]
The appellant believed that the persons so mentioned, whether by name
or designation, were state witnesses and that this presented an
impediment in procuring evidential material to support his bid for
bail in the first application. It appears that the appellant’s
belief did not read persuasively with the magistrate. For
reasons
indicated below, this led to an unsustainable result.
[10]
To begin
with, if attention is directed to the opposing affidavit the
objective reader may reasonably engender the impression that
the
persons mentioned therein were state witnesses. It is not illogical
to accept that a reasonable person in the position of the
appellant
would be disinclined to seek their assistance despite entertaining a
belief that they may be of assistance to him. Once
it became known to
the appellant (after the first bail application) that some of them
were not state witnesses, it was open to
him to procure evidence from
them to support a further bail application. A disclosure made by the
appellant’s brother and
nephew to the appellant’s legal
team that their names were mentioned in the opposing affidavit but
that they were never consulted
by the investigating officer and were
not state witnesses appears to have been the precipitant for the
second application based
on ‘new facts’ with further
affidavits obtained from the persons the appellant initially assumed
to have been state
witnesses
[4]
.
[11]
Respectfully,
in this matrix of events the magistrate did not appreciate that what
constituted a new fact was the circumstance of
it becoming known to
the appellant that the persons previously assumed to be state
witnesses were not. By parity of reasoning the
subsequent
availability of electronic evidence in the appellant’s
cellphone, notwithstanding the prior existence of the evidence,
constituted a new fact. At one level it is the change in
circumstances which made the evidence accessible to the appellant
that
in our view constitutes new facts. At another level it is the
relevance of the evidence, and it is to this issue that we turn
to.
[5]
[12]
In the opposing affidavit by the investigating officer the appellant
is portrayed as a
narcissistic, domineering, and overbearing
individual who, during his marriage, physically and emotionally
abused his wife for
whose murder he is charged with. Indications are
that the pattern of abuse featured in the appellant’s previous
marriages
and/or relationships, and that the appellant dissipated his
assets pending the divorce action from his deceased wife; and further
that he instigated one of his co-accused to encourage her to develop
a drug addiction and thus lay the foundation for her subsequent
murder. We do not deem it necessary to recapitulate all the material
contained in the opposing affidavit suffice to mention that
its drift
seeks to attribute dishonest and dismissive personality and character
traits to the appellant.
[13]
In the
magistrate’s approach to the determination of new facts it
appears that he did not consider that the appellant procured
evidential material
[6]
that was
intended to augment his prospects for obtaining bail and in essence
demonstrating a two-fold purpose, namely:
(i)
by presenting a favourable portrayal of the appellant’s
personality and
character traits; and
(ii)
by demonstrating that the investigating officer’s evidence,
apart from being circumstantial,
was false and that he misled the
court.
[14]
Stated otherwise the evidence procured by the appellant was aimed at
revealing that the
evidence presented by the respondent during the
initial bail application might be compromised and that the
circumstantial nature of
the state’s case on the alleged
murder was – contrary to the assertions of the investigating
officer – not as
strong as he had made it out to be.
[15]
There can be no justification for the magistrate having applied the
‘not existing
before’ approach in relation to the
evidence the appellant sought to introduce in his second application.
The evidence which
subsequently came to the fore, existed – it
existed with the persons concerned but was unavailable to the
appellant at the
time of the first bail application. The same
rationale applies to the electronic evidence retrieved from the
appellant’s
cellphone which had been in possession of the
police at the time of the first bail application. The evidence
existed at the time
of the first bail application but was unavailable
to him until 28 April 2022 once information was retrieved by an IT
specialist.
Here too, there is no scope for applying the ‘not
existing before’ approach.
[16]
In summary, and based on the aforementioned guidelines and
principles, it was submitted
for the appellant that the mere fact
that the evidence relied on in the second bail application existed at
the time of the initial
application for bail does not mean that such
evidence cannot constitute new facts. Taken further, the submission
was that if the
evidence was unavailable to the appellant at the time
of the first bail application, then it constitutes new facts even
though
it may have been in existence at the time of that
application. The considerable force in these submissions inclines us
to
conclude, in the circumstances of this matter, that the approach
adopted by the magistrate was unsound and erroneous. In our view,
the
evidence procured by the appellant may assume relevance where a court
is required to make a determination on the bail issue
by weighing the
contested versions put up by the respective parties. In this regard
the sweeping averment in the opposing affidavit
by the investigating
officer that his allegations are supported by evidence contained in
affidavits, exhibits, voice recordings
cellular phone downloads,
billings and digital evidence – without specifically setting
out exactly what evidence the state
has against the appellant –
is of particular note.
[17]
We now turn
to addressing the ambit and scope of this appeal. For the appellant
it was submitted that where the magistrate’s
decision had been
faulted, this court is at liberty to consider the question of bail
afresh and to grant the appellant bail in
an appropriate amount and
on appropriate conditions. The conclusion flowing from this
submission is that the matter is before this
court as a substantive
application for bail. The appellant’s notice of appeal is so
widely crafted that it does not specify
clearly and in unambiguous
terms exactly what case is put forward for consideration by this
court and which the respondent is required
to meet. In argument the
respondent correctly referred to the record, which in our view
provides a complete answer.
[7]
[18]
In his
address to the magistrate the record indicates that the appellant’s
legal representative stated the following:
[8]
‘
As I understand
the procedure as set out in law, evidence has to be placed before
court and on the evidence placed before court,
the court needs to
make a decision whether that evidence indeed constitutes new facts or
not and then only take a decision and
compare. So my submission, Your
Worship, is that the applicant be given permission to place the new
facts before court and ultimately
the court will then decide whether
those facts are in fact new or not and then the state will have the
opportunity of, if they
are of the opinion that it is new facts, to
reply thereto.’
[19]
At the
conclusion of argument before the magistrate, the appellant’s
legal representative stated:
[9]
‘
Your Worship, it
is my submission that in the light of the facts placed in front of
Your Worship and in the light of how these facts
came to light and
were obtained after the denial of bail, that these facts are in fact
new facts which only became available to
the applicant after the
denial of bail and that therefore this application should be
entertained.’
[20]
Clearly, the scope of the proceedings before the magistrate was
specifically identified
and limited to the determination of new
facts. For this reason the respondent did not, in the court a quo,
enter upon the merits
of the appellant’s application for bail
on new facts and elected to deal only with the question whether the
appellant had
proved the existence of new facts. Accordingly, the
respondent correctly submitted that the inquiry before this court was
limited
solely to this issue. Our pronouncement against the
magistrate’s finding does not entitle the appellant to a
hearing in the
sense that this court must determine the question of
bail afresh. In this regard the following remarks necessitate
mentioning.
[21]
Once an
applicant for bail on new facts has established the existence of new
facts, he is allowed to re-open his case and is entitled
to lead any
further evidence, new and old
[10]
,
which he wishes to lead in support of his new application for
bail.
[11]
Due regard must of
course be had to
section 60(11)(a)
of the
Criminal Procedure Act. The
section implicates Schedule 6 offences and obliges an accused on
being given a reasonable opportunity to adduce evidence which
satisfies
[12]
the court that
exceptional circumstances exist which in the interests of justice
permit his release.
[22]
There is
merit in the respondent’s submission that what is yet to be
determined is whether the new facts (or further
evidence which
the appellant may wish to adduce) constitute exceptional
circumstances for his release on bail
[13]
.
It stands to reason that should the respondent choose not to
rebut the appellant’s evidence the magistrate will then
have to
consider the matter on the strength of the evidence put forward by
the appellant. Should the respondent rebut, the magistrate
will have
to consider the evidence holistically i.e. the evidence in rebuttal
together with the evidence of the appellant read
with the provisions
of the aforementioned section in deciding whether bail should be
granted.
[14]
[23]
As we are
of the view that the magistrate erred in his approach to the
determination of new facts by concluding that the evidence
presented
by the appellant
[15]
did not
constitute new facts, the following order will issue:
1.
The matter is remitted to the magistrate or an alternate magistrate
to urgently
make a determination of the appellant’s bail
application on new facts in accordance with
section 60(11)(a)
of the
Criminal Procedure Act 51 of 1977
within seven (7) days of the date
of this judgment.
2.
The appellant is to be afforded the opportunity to adduce evidence in
support
of his further bail application of 7 April 2022 in respect of
the new facts that had come to light and/or any further evidence that
he wishes to lead in support thereof.
3.
The respondent is to be afforded the reasonable opportunity to adduce
further
evidence in response to any evidence presented by the
appellant in accordance with paragraph 2 above.
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree.
V.
NONCEMBU
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Appellant:
P. Daubermann
P.
Daubermann Attorneys
Gqeberha
For
the Respondent:
M. Stander
Office
of the Director of Public Prosecutions
Gqeberha
Date
heard:
09 September 2022
Date
delivered:
04 October
2022
[1]
See
Criminal Justice Review No. 2 of 2017 at page 9’
New
facts for purposes of a bail application: Principles, issues and
procedures’
,
by Steph van der Merwe
[2]
As
he then was.
[3]
The
opposing affidavit appears in volume 1 of the record as Annexure ‘D’
at page 73
et
seq
[4]
The
persons are mentioned in the magistrate’s judgment at page
362, and the totality of the evidential material, including
electronically retrieved information, placed by the appellant before
the magistrate is detailed in paragraph 21 of the respondent’s
heads of argument filed in this court on 2 September 2022
[5]
Compare
S
v Petersen
2008 (2) SACR 365
(C) at paragraphs [57]
[6]
The
material is detailed in paragraph 21 of the respondent’s heads
of argument.
[7]
Compare
Moto
Health Care Medical Scheme v HMI Healthcare Corporation (Pty) Ltd
and Others
(341/18)
[2019] ZASCA 87
(31 May 2019) at paragraph [37] in which
Thompson
v South African Broadcasting Corporation
[2000] ZASCA 76
;
2001 (3) SA 746
(SCA) at paragraph
[7]
was cited with approval
[8]
Volume
3 page 3:18 - page 4:3
[9]
Volume
3 page 209:19-24
[10]
S
v Vermaas
1996
(1) SACR 528
(T) at page 531e-f
[11]
Compare
Nwabunwanne
v S
2017
(2) SACR 124
(NCK) at paragraph [29]
[12]
This
presupposes that the appellant will discharge the onus upon a
balance of probabilities –
S
v Jonas and Others
1998 (2) SACR 677
(SE) at page 679g
[13]
C[…]
and Another v The State
(SS013/2021)
[2021] ZAGPJHC 125 (26 July 2021) at paragraphs [8] and
[9], and compare
S
v Mgumbi
2022 (1) SACR 478
(WCC) at paragraphs [21]-[27]
[14]
S
v Jonas supra
at
page 680d
[15]
As
detailed by the material identified in paragraph 21 of the
respondent’s heads of argument