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[2024] ZAKZPHC 14
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Banawo v S (684/2024P) [2024] ZAKZPHC 14 (26 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no:684/2024P
In the matter between
ROSHANLAL
BANAWO
APPELLANT
V
THE
STATE
RESPONDENT
JUDGMENT
PITMAN
AJ
Background
[1]
The appellant, Roshanlal Banawo, an adult male sixty-one-year-old
“pensioner”
(so he describes himself) appeals against the
refusal to grant him bail by a magistrate in the Umzinyathi District
Magistrate’s
Court held at Dundee on 14 December 2023. The
appellant had been arrested on 26 November 2023 on a charge of
conspiracy to murder
a Major General Frances Slambert (Hereafter “the
Major General”) of the South African Police Services. The bail
application
commenced on 11 December 2023 with judgement being
delivered on 14 December 2023. The appellant was represented by
Counsel being
Advocate Snyman and the State was represented by
Advocate Truter. When the hearing commenced Advocate Truter placed on
record that
the legal representatives had agreed that the offence for
which the appellant was charged was neither a Schedule 5 nor Schedule
6 offence. Advocate Snyman placed on record that there was no burden
on the appellant to show that the interests of justice permit
his
release but rather that the State had to show that the interests of
justice do not permit his release.
In limine
[2]
During the bail application, Mr. Snyman read onto the record a
statement that the
appellant would apparently rely upon as evidence
in his favour. After reading it he asked the appellant, in open
court, to confirm
that he intended it as an affidavit and that he
considered the statement to be one “
under oath and binding
on”
his conscience. It was then handed up to the
magistrate. Advocate Truter and, it appears the magistrate, accepted
it as such, and
it appears as if it was admitted in evidence by the
magistrate without further question. In her judgement the magistrate
continues
to refer to it as a “
statement”
but
apparently accepted everything set out therein as constituting the
evidence on behalf of the appellant for purposes of the
bail
application.
This appeal appeared
before me initially on 16 February 2024. The same two Counsel
appeared for the parties. Before commencing with
any argument, I
raised the question of whether the “
statement”
was
in fact intended as an “
affidavit”
or just as an
unsworn statement. I was concerned because the procedure followed by
Counsel for the appellant at the bail application
can in no way be
described as being the correct manner in which a statement is
commissioned in order to convert it into an affidavit.
For Counsel to
read out a statement and then ask the appellant, who was not in the
witness box and accordingly had not been sworn
in, in open court
whether he considered the contents to be binding on his conscience
does not, and cannot, amount to the lawful
commissioning of that
“
statement”
by a commissioner of oaths. Both
Counsel agreed with me and indicated that they had, without further
thought at the time, actually
considered the statement to have
effectively become an affidavit and had approached the matter on that
basis. Upon reflection,
in view of what I had brought up, they both
agreed that it was not, in fact at the time, an affidavit.
[3]
Advocate Snyman for the appellant argued that all parties understood
it as such and
that the appeal could proceed on that basis. I did not
agree because in my view, and on what was before me, the appellant
had placed
no evidence under oath before the magistrate, and insofar
as it appears that the magistrate seems to have accepted that to be
the
position, that was wrong.
[4]
Both Advocates Snyman and Truter proposed that the bail appeal be
adjourned until
23 February 2024 for the document to be properly
commissioned. Whilst
prima facie
there may be questions about
adopting such a procedure I was satisfied from reading the record,
and both Advocates agreed, that
the bail application was in fact
decided by the Court
a quo
on the basis that the statement
handed up was an affidavit and no prejudice can result by its proper
commissioning between 16 February
2024 and then. The magistrate,
despite referring to it as a statement considered it as evidence on
behalf of the appellant, did
not object to the manner in which it was
purportedly “commissioned” and treated the contents as if
they were set out
on affidavit.
[5]
The appellant has in fact now delivered the statement duly
commissioned by way of
a notice of delivery dated 20 February 2024.
There was no objection by Advocate Truter. I was therefore satisfied
that in the interests
of justice this appeal could continue on the
record before me. Remitting it back to the magistrate would serve no
sensible purpose.
[6]
The appeal was accordingly argued on that basis on 23 February 2024.
After hearing
argument, I adjourned the matter until today for my
judgement.
The merits
[7]
Prior to any evidence being introduced Advocate Truter placed on
record that the State
was opposing bail on the basis that there was a
likelihood that the appellant, if released on bail, would attempt to
influence,
or intimidate witnesses or to conceal or destroy evidence.
He placed on record that the opposition was therefore “
limited
to section 60 (4)(c) of the Criminal Procedure Act”
.
(Hereafter “the CPA”)
[8]
As set out above the appellant provided the evidence set out in his
statement/affidavit.
The investigating officer, Col Engelbrecht
testified for the State. The appellant’s evidence, in brief
summary, was that
he was not guilty, he had a 1994 previous
conviction for mishandling of a firearm to which he had pleaded
guilty, he would stand
trial if granted bail and that he would not
influence or intimidate any witnesses or conceal or destroy evidence.
He was not aware
of witnesses who may have made statements against
him, had always cooperated with the police in this matter and in the
event that
the court felt it was necessary, would comply with any
conditions the court may deem necessary.
[9]
Col Engelbrecht, a policeman for 40 years, testified that he is
investigating officer.
In summary he stated that he was stationed at
the Provincial Task Team, Vryheid and that he was opposing bail on
the basis set
out by the State to which I have already referred. He
stated that the appellant had been a police officer stationed at the
Dundee
Detective Services and had also done duties at the Dundee
Court but was now, after being dismissed from the police service, a
pensioner
living in the Dundee area, buying, and selling cattle and
earning from that endeavor, allegedly approximately 20,000 Rand a
week.
He has no pending cases against him. He stated that the case he
has against the appellant is as follows:
a)
The appellant is a
friend of a man called Kader.
b)
A protection order had
been taken out against Kader by the Major General pursuant to a
relationship the Major General and Kader
had been involved in, in
about 2023.
c)
Kader had in turn
written a letter of complaint against the Major General to the
National Commissioner. It is not necessary that
I deal with the
merits of the protection order or letter of complaint.
d)
Two other protection
orders had also then been obtained by the Major General against
Kader.
e)
On 25 May 2023, and at
court in connection with one of the protection orders, a photograph
was taken of the Major General’s
white BMW vehicle with Kader’s
phone.
f)
The appellant was with
Kader at court when that photograph was taken.
g)
After being requested
to become involved in an investigation into threats against the Major
General, he met with the appellant on
25 May 2023. He informed the
appellant that there would be an investigation from that day onwards
and that he should stay away
from the complainant, not call her, not
speak to her and not contact her at all.
h)
On 26 May 2023 the
appellant approached the magistrates court and obtained a protection
order against the Major General who in turn
obtained a protection
order against the appellant alleging in her application that “
my
life is in danger. I’m now convinced Banawo is going to kill
me”
.
i)
On 14 June 2023 he
further received information that there is “
indeed”
a plot to kill the Major General.
j)
He obtained statements
from two witnesses to the effect that they had been hired by the
appellant to eliminate and kill the Major
General. One lived in
Gauteng and the other in Dundee. The one who lived in Gauteng had his
hometown in Dannhauser, about 30 km
away.
k)
The witnesses, who had
both agreed to be a section 204 witnesses in due course, had met the
appellant who had pointed out places
where, inter alia the Major
General worked so that they could carry out her elimination. The
appellant had described to them the
Major General’s vehicle
also.
l)
Using the powers of
section 205 of the Criminal Procedure Act he obtained cell phone
records which indicated contact between one
of these witness
conspirators and the appellant and between that witness and the other
accomplice. The information he got was that
the Major General would
be shot.
m)
The witnesses would say
that they had in fact attempted to carry out the elimination of the
Major General but had been disturbed
the first time round and on the
second occasion, whilst physically standing in front of the Major
General’s gate, she did
not come out as anticipated.
n)
He testified that the
witnesses are known to the appellant. They had stated that they had
travelled in a white double cab vehicle
with an NDE registration,
like the vehicle he discovered the appellant in fact possessed.
o)
In August,
approximately two months later, he obtained a statement from another
witness to the effect that this new witness had
also been approached
by the appellant to arrange a firearm and hitman and that at the time
of the discussion with this witness
the appellant had been in
possession of a rifle in the same type of double cab white vehicle.
This witness also resides in Dundee.
During a later search of the
appellant premises a rifle was found and later identified by the
witnesses as the rifle that was in
the vehicle that day.
p)
The three witnesses are
prepared to testify but are severely concerned about their safety.
q)
His investigation was
approximately 95% complete. He had initially not wanted to arrest the
appellant until the investigation was
complete due to the sensitivity
of it and the safety of his witnesses.
r)
He made the decision to
arrest the appellant on 26 November 2023 because on 23 November the
appellant’s vehicle was seen in
the vicinity of the Major
General’s house. This was not her original home but one that
she had moved to. The appellant’s
vehicle had driven slowly
past the house and had occupants including the appellant. The
witnesses confirmed that later on the same
day the appellant’s
vehicle was seen driving past the workplace of the Major General,
again very slowly.
s)
Around 23 November
2023, he is not sure of the date, there was an incident at the Major
General’s house where she woke up
with a laser beam shining
through her window. Her alarm had been activated and the police
responded. The laser beam incident is
corroborated by an independent
witness.
t)
He then decided that
the Major General’s safety was paramount, and he had to make an
arrest. He accordingly arrested the appellant.
u)
He had concerns that
the appellant will not stop with his unlawful conduct if granted
bail. He remains concerned about the safety
of his witnesses and the
safety of the Major General. The witnesses have expressed that they
are “
petrified”
of the appellant because as soon as the appellant knows (as he now
does) that the people he hired were going to testify against
him, he
will kill them.
v)
He conceded that he was
not aware of any motive that the appellant may have had to kill Major
General save that the appellant was
close friends with a man who had
a serious gripe against the Major General.
w)
He testified that the
appellant is “
generally
feared in Dundee area”
and that the witnesses strongly believe that they will be eliminated
by the appellant. He pointed out that even the original magistrate
had not been prepared to be involved in this matter. In his view
there was a likelihood that if released on bail the appellant
will
interfere with his witnesses and the Major General. He admitted that
none had been interfered with or intimidated yet.
x)
As regards possible
conditions if bail was granted, in his evidence in chief the
following exchange took place between Advocate
Truter and the
witness:
Prosecutor
:
Now, let’s just deal with bail conditions. Ideally one wants to
allow an accused person if it is in the interests of justice
to be
released on bail. You confirm that?
Mr.
Engelbrecht
:
Correct.
Prosecutor
:
Your stance and my stance is that we rather want the Court to make a
ruling in that regard by presenting a balanced approach to
the Court?
Mr.
Engelbrecht
:
Yes, your Worship.
Prosecutor
:
Should the Court find that bail conditions or that bail can be
imposed, what conditions are you asking for to be considered?
Mr.
Engelbrecht
:
Your Worship, I should ask for the safety of the witnesses and also
the complainant – take into consideration the complainant
also
because she will be a witness – is that if bail should be
granted that the accused shouldn’t stay in the Umzinyathi
area
and that perhaps he should report to the police station. And then I
learned today…that he does have a passport which
he told us
that his passport has lapsed or expired, so I would like the passport
to be handed in and then if he should then enter
the area he should
make prior arrangements with me or Warrant Officer Badenhorst if he
should be available….He indicated
at a stage during the
investigation that he has got an alternative address…in
Pietermaritzburg (250 km from Dundee)…He
should leave the
district.
y)
Under cross examination
as regards the possibility of conditions attached to bail, and when
asked about “
witness
protection”
he was sceptical on the basis that it is voluntary and he is
personally aware of an incident where, notwithstanding witness
protection,
the witness was found and kidnapped and has since
disappeared. He did not agree that there were any conditions which
would in fact
adequately safeguard his witnesses and the complainant.
The following exchange took place:
Mr.
Snyman
: So,
you would accept that bail conditions will do away with these threats
of intimidation or concealment or destruction of evidence?
Mr.
Engelbrecht
:
No. If the Court is granting bail, then I would say that that is a
further precautious method to make sure that the witnesses,
including
the complainant, are safe.
z)
He motivated this
further by saying that conditions confining the appellant to a
certain area were always inherently problematic
in a case such as
this because it could not be permanently monitored. It would also not
stop the appellant from getting the assistance
of others regardless
of where he was resident or domiciled at the time in terms of the
condition. He therefore concluded “…
It
does not really satisfy me in the sense to say this will solve the
problem”.
[10]
After reviewing the evidence, the magistrate found that she was of
the view that there was a
“
prima facie”
case
against the appellant. She accepted that the onus was on the State to
show on a balance of probabilities that the interest
of justice do
not permit the appellant’s release on bail. She understood that
the opposition to bail related to the features
and factors set out in
section 60(4) of the CPA. She was alive to the fact that the
investigation was almost complete and the matter
would be ready for
trial shortly. Being fundamentally concerned about the safety of the
witnesses and complainant, she finally
concluded that the interests
of justice demanded that he remain in custody and refused bail.
[11]
The appellant’s Counsel argued that the magistrate erred in:
a)
Finding that there was
a likelihood that witnesses would be intimidated or interfered with,
in the light of Engelbrecht’s
evidence, that so far witnesses
had not been intimidated.
b)
Finding that just
because the appellant may have known who they were, there was a
likelihood that he would intimidate or interfere
with them.
c)
Failing to find that
appropriate conditions attached to bail could protect against that
danger. In this regard it is argued that
she misdirected herself when
she said that the appellant “was not keen to relocate”
when his affidavit indicated that
he would accept any necessary
conditions.
d)
Finding that the
appellant failed to convince the Court that his further incarceration
will detrimentally affect his life or wellbeing
in any manner.
[12]
Mr. Snyman argued further that there was insufficient evidence before
the court to support a
finding that there is a likelihood that the
appellant will interfere with witnesses. He stated that the test
required evidence
that it would “
probably occur”
.
He argued that conditions of bail requiring the removal of the
appellant to outside the area of Dundee would suffice. He also
argued, with reference to particularly S v Branco
2002 (2) SACR 531
(W) and S v Acheson
1991 (2) SA 805
(NmH), that the magistrate had
not properly considered and investigated the issue of whether
appropriate conditions of bail in
order to maximise the argument in
favour of personal liberty in a bail application where concerns are
expressed by the State about
possible interference with witnesses?
According to the evidence of Engelbrecht, the hit was, to some
extent, arranged via telephone
calls.
[13]
Mr. Truter argued that the crisp issue in this appeal was whether the
magistrate correctly concluded
that it was not in the interests of
justice to release the appellant on bail. He submitted that as a
matter of logical conclusion,
the appellant would, and does, know the
204 witnesses. That argument is of course unassailable. He accepted
that there had been
no intimidation or influence before the
appellant’s arrest and argued that that was obviously so
because the appellant never
knew of the progress of the investigation
against him or that the witnesses were prepared to testify against
him. That argument
is also unassailable. He argued that Engelbrecht
warned the appellant on 25 May 2023, not interfere with the Major
General and
to stay away from her. That is not disputed. On the
available evidence the appellant thereafter did not do so. The
evidence reveals
that the appellant thereafter hired hitmen to kill
her and actively took part in showing them her home and workplace. He
twice
approached hitmen and “
shows an astonishing
persistence in securing the killing” of
the major General
despite being warned by the police not to do so. He argued that that
evidence points towards the likelihood of
interference with the
witnesses. Mr. Truter informed this court, as he had also set out in
his heads of argument, that the investigation
is complete, save for
one cell phone analyst’s statement. The case had, on 22
February 2024, been transferred from the District
Court to the Dundee
Regional Court for a first appearance in March 2024. He will
prosecute the trial himself and had reserved dates
for the trial in
August 2024 with the Dundee Regional Court already. It indicated that
the trial will proceed from the State’s
side.
[14]
This Court’s powers in a bail appeal are prescribed in section
65(4) of the CPA which provides
that the court shall not set aside
the decision, unless satisfied that the decision is wrong, in which
event the court shall give
the decision which, in its opinion, the
lower court should have given.
See S v Barber
1979 (4) SA 218
(D)
at 220 E.
[15]
I’m not convinced that the magistrate misdirected herself in
relation to the appellant’s
evidence regarding the possible
relocation condition. In his affidavit tye appellant says that he
undertakes to abide any conditions,
such as, reporting to the nearest
police station, not contacting any State witnesses, and informing the
investigating officer if
any of the State witnesses attempt to
contact him. The central submission in his affidavit, however, is
that his continued detention
would have a devastating negative effect
on his financial affairs. Those financial affairs can only be what he
describes as is
“
trade in livestock from my residence”.
Nothing was said by the appellant or his Counsel about how he could
attend to those financial considerations if not in Dundee or
its
surrounds. The evidence of Engelbrecht had indicated that the
appellant had what was called “an alternative address”
in
Pietermaritzburg but the precise details thereof were not followed up
by the appellant’s Counsel in cross examination
or his address,
nor was the tender made that the appellant would accept relocation to
that “alternative address”
. In his address on the
matter in the court of quo the appellant’s Counsel, almost as a
throwaway line, simply stated “
the question of whether or
not setting a condition that he must reside in Pietermaritzburg will
satisfy. We leave it to the court
but submit that there is no real
evidence advanced by the State why he should not be allowed to reside
on his farm, outside of
town”.
I have carefully considered
the Branco and Acheson cases referred to by the appellants Counsel.
Save for setting out general principles
that may be relevant to this
matter, they concern different allegations and facts. I do not
consider the magistrate wrong in concluding
as she did that
conditions would not satisfy the interests of justice in this matter.
[16]
I am of the view that although it was perhaps inelegantly phrased,
the magistrate was not wrong
when she said in her judgement “
but
the applicant in his application was not keen to relocate or rather
Court will say he did not raise the issue of being willing
to
relocate should the Court grant bail.”
[17]
On the issue of the likelihood of risk to the witnesses and the Major
General, the magistrate
carefully considered, in the circumstances of
Engelbrecht’s evidence of three attempts by the appellant to
kill the Major
General, the safety of the Major General and the three
witnesses who would implicate him.
[18]
On the issue of whether his further incarceration would detrimentally
affect the appellant’s
life or wellbeing in any other manner,
in my view, the magistrate was correct in concluding that the
appellant had failed to set
out facts justifying such a conclusion.
All he had said in his affidavit was that he would stand to lose any
potential income from
his livestock, and it will be very difficult to
maintain himself and comply with his financial responsibilities and
expenses to
the extent that his assets he would be attached and lost.
In my view those are conclusions only. The facts to support them are
not revealed. On his own version he gets a pension of R20 000,00
per month in any event.
[19] I
am also not satisfied that the magistrate placed an onus on the
appellant as argued by Counsel for the
appellant. None of the
portions of the record referred to justify that conclusion in my
view.
[20]
Whilst it does not appear to have been dealt with at the bail
application I cannot lose sight
of the fact that a charge of
conspiracy to commit murder attracts a potential sentence equivalent
to that of murder in the event
of a conviction. Premeditated murder
attracts a potential life imprisonment sentence. That consequence for
the appellant, if he
is convicted, is something that cannot be
ignored when considering, together with all other evidence, an
incentive on his part
to avoid a trial.
[21]
As a result, I have not been persuaded that the court
a quo
was wrong in its decision that the interests of justice do not permit
the release of the appellant on bail. As far as the issue
of the
likelihood or probabilities around the potential for the appellant to
influence or intimidate witnesses or conceal or destroy
evidence if
he is released on bail I am satisfied that such is established on a
conspectus of the evidence in the bail application
as a whole. Of
significant relevance is the fact that that despite being warned by
Col Engelbrecht in March 2023 to leave the Major
General alone, the
evidence that Col Engelbrecht as acquired from the accomplices, is
that the appellant did anything but leave
her alone. I do not lose
sight of the fact that he claims he will plead not guilty, as is his
right, and presumably will have a
different version. He did not
disclose such version at the bail application, however. Nevertheless,
on the strength of Col Engelbrecht’s
evidence there is a real
risk that the appellant has very little respect, if any at all, for
law and order and particularly for
complying with an instruction from
an authority.
[22] That being so I am
satisfied that the court a quo was quite correct in finding that the
interests of justice do not permit
the release of the appellant on
bail.
As a result, the appeal
is dismissed.
PITMAN AJ
Date
reserved:
23
February 2024
Date
delivered:
26
February 2024
For
Appellant:
Adv
Snyman
Instructed
by:
RVS
Attorneys Incorporated
Subhash
Maikoo & Associates Inc
Email:
pmb@smalegal.co.za
Tel:
033 342 7173
Ref:
15S147084/SM/np
For
Respondents:
Adv
Truter
Instructed
by:
The
National Director of Public Prosecutions
Email:
atruter@npa.gov.za