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2024
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[2024] ZAECMKHC 25
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Namlela and Another v S (CA&R 16/2024) [2024] ZAECMKHC 25 (7 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
OF
INTEREST
Case
no: CA&R 16/2024
In the matter between:
LEVISON NAMLELA
First Appellant
STEVEN MARUTA
Second Appellant
and
THE STATE
Respondent
BAIL APPEAL JUDGMENT
Govindjee
J
Background
[1]
The
appellants stand arraigned in the Magistrate’s Court at Port
Alfred on various charges, including contravention of sections
of the
Marine Living Resources Act, 1998
[1]
(‘the MLRA’) and the
Immigration Act, 2002
.
[2]
[2]
Opposed applications to be released on bail
were dismissed by the court
a quo
on 10 January 2024. Before considering the applicable constitutional
and legislative framework, the reasoning of the court
a
quo
and the grounds of appeal, a
preliminary evidentiary matter requires determination.
Application to adduce
further evidence on appeal
[3]
The
appellants rely on two cases in support of their contention that they
should be permitted to adduce further evidence before
this court, on
appeal.
[3]
Neither case deals
with an application of this nature in the context of a bail appeal.
As was the case in
S
v Janssen
,
[4]
the proposition advanced is novel and, as will be indicated,
seemingly unsupported in case law.
[4]
Bail
applications are
sui
generis
and
unique, being neither civil nor criminal proceedings. Consequently,
the rules of evidence applied in trial actions are not strictly
adhered to and the inquisitorial powers of the presiding officer are
greater. To quote Kriegler J:
[5]
‘
An
important point to note here about bail proceedings is so
self-evident that it is often overlooked. It is that there is a
fundamental
difference between the objective of bail proceedings and
that of the trial. In a bail application the enquiry is not really
concerned
with the question of guilt. That is the task of the trial
court. The court hearing the bail application is concerned with the
question
of possible guilt only to the extent that it may bear on
where the interests of justice lie in regard to bail. The focus at
the
bail stage is to decide whether the interests of justice permit
the release of the accused pending trial; and that entails, in the
main, protecting the investigation and prosecution of the case
against hindrance.’
[5]
The
State is not obliged to produce evidence in the true sense in bail
proceedings, or bound by related formalities. The court may
take into
account whatever information is placed before it in order to form
‘what is essentially an opinion or value judgment
of what an
uncertain future holds. It must prognosticate’.
[6]
The court is not so much concerned with the rules of procedure
regarding evidence but with the cogency of the information, to
determine whether there is a likelihood of the interests of justice
being prejudiced by the release of the accused.
[7]
[6]
As
for evidence on appeal, in
S
v Ho
,
[8]
the court distinguished the present position from that in operation
in terms of the previously applicable legislation:
‘
The
first point to be noted is that this is an appeal and not, as it was
under the 1917 Act, an application. The case has therefore
to be
decided upon the material appearing on the record, including the
magistrate’s reasons, either given at the time or
furnished in
terms of s 65(3). There is no provision for furnishing additional
information to this Court. On the contrary s 65(2)
provides: “An
appeal shall not lie in respect of new facts which arise or are
discovered after the decision against which
the appeal is brought,
unless such new facts are first placed before the magistrate or
regional magistrate against whose decision
the appeal is brought and
such magistrate or regional magistrate gives a decision against the
accused on such new facts.”
It is therefore incumbent upon an
appellant or his legal representative to place the relevant facts
fully before the magistrate
when the application for bail is made or,
if any such facts are not known to such legal representative, to take
steps under ss
(2) when they become known to him. It is not competent
to lay them before the appeal Court by way of affidavit, nor is it
proper
to attempt to introduce them by way of statements from the
Bar.’
[7]
The
position has been confirmed by Van Zyl J in this Division in
S
v Yanta
:
[9]
‘
Like
any other appeal an appeal against the refusal of bail must be
determined on the material on record. There is no provision
for
furnishing additional information to the Court hearing the appeal. In
terms of s 65(2) an appeal shall not lie in respect of
new facts
which arise or are discovered after the decision against which the
appeal is brought, unless such new facts were first
placed before the
court against whose decision the appeal is brought and such court has
given a decision against the accused on
such new facts.’
[8]
I
am bound by this decision and disinclined to deviate from it. The
position may be different, in exceptional or so-called ‘peculiar’
cases,
[10]
in respect of other
kinds of appeals and reviews, such as in the case of remittal to a
regional court for the hearing of further
evidence following review
and in appeals against sentence, based on the s 35(3) rights of an
accused person to a fair trial.
[11]
Where an accused has been convicted in a High Court, an application
for fresh evidence to be led is governed expressly by s 316(5)
of the
CPA.
[12]
It is also
interesting to note that s 22 of the now repealed Supreme Court Act,
1959
[13]
empowered higher
courts to receive further evidence on the hearing of an appeal, or to
remit the matter to the court of first instance
for further hearing,
with instructions as to the taking of further evidence as necessary.
Although similar provisos have been included
in chapter 5 of the
Superior Courts Act, 2013
,
[14]
‘appeal’ in chapter 5 is defined specifically to exclude
appeals in matters regulated by the CPA or in terms of any
other
criminal procedural law.
[15]
The rationale for the more generous approach prevalent in respect of
appeals generally is also noteworthy, the dictates of fairness
requiring that all relevant information bearing on the question of
guilt or innocence being placed before the trial court to enable
it
to determine the true facts in order to avoid injustice.
[16]
Considerations pertaining to fair trial rights and questions of guilt
or innocence, to be determined after trial, are not central
to the
present application.
[9]
The
appellants accept that the facts upon which they rely constitute ‘new
facts’. They submit, however, that the presiding
magistrate is
clearly disqualified from hearing a bail application on new facts
because she had authorised the search warrant and,
furthermore, that
the search warrant is fatally defective so that the State’s
case is poor. This judgment does not pronounce
upon those issues.
[17]
Relying upon the available authorities, the point is that the present
appeal is to be determined based on the record of the bail
proceedings in the court
a
quo
,
a bail application on new facts to be considered by the presiding
magistrate or, if necessary, before a different magistrate,
in the
usual manner. I am unconvinced that cogent reasons exist to depart
from this approach in the present circumstances.
[18]
[10]
In
addition, I consider that to do so would open the door to attempts to
bypass the court
a
quo
in circumstances where this is unwarranted. Even if there may be a
good basis for a presiding officer to recuse themselves in certain
circumstances when faced with an application based on new facts, this
should be pronounced upon by that magistrate. If necessary,
I see no
reason why another magistrate may not be allocated to consider the
matter thereafter, bearing in mind that the accused
stand arraigned
in that court. To hold otherwise would be to turn an appeal court
into a court of first instance, saddling this
court with an
obligation to receive evidence, in circumstances where this has not
been contemplated by the legislature. Whether
there are ‘new
facts’ for a renewed bail application, and their effect on the
outcome, will be decided by that court
and that determination may
then be subjected to further appeal.
[19]
It goes without saying that the appellants have a right to a
reasonable opportunity to present new facts for purposes of a renewed
bail application before a magistrate, and that this right should not
be denied without good reason.
[20]
[11]
The application to adduce further evidence
is accordingly refused.
The legal position
[12]
A
judge hearing an appeal shall not set aside the decision against
which the appeal is brought, unless the judge is satisfied that
the
decision was wrong, in which event the judge shall give the decision
which in their opinion the lower court should have given.
[21]
The real question is therefore whether the presiding magistrate
exercised their discretion, in refusing bail, wrongly.
[22]
As Hefer J held in
S
v Barber
:
[23]
‘
It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly,
although this Court may have a different view, it should
not substitute its own view for that of the magistrate because that
would
be an unfair interference with the magistrate’s exercise
of his discretion. I think it should be stressed that, no matter
what
this Court’s own view are, the real question is whether it can
be said that the magistrate who had the discretion to
grant bail
exercised that discretion wrongly.’
[13]
It
is accepted that interference is also justified where the lower court
‘overlooked some important aspects’ in coming
to the
decision to refuse bail.
[24]
[14]
The factors that the court
a
quo
had to consider in determining the
question of interests of justice are outlined in s 60(4) of the Act.
According to the section,
the interests of justice would not permit
the release of the accused if one or more of the following grounds
are, inter alia, shown
to exist:
‘
(b)
where
there is the likelihood that the accused, if he or she were released
on bail, will attempt
to evade his or her trial; or …
(d)
where there
is the likelihood that the accused, if he or she were released on
bail, will undermine or jeopardise the objectives
or the proper
functioning of the criminal justice system, including the bail
system;’
[15]
In
considering whether the ground in subsection (4)
(b)
has been established, the court may, where applicable, take into
account the following factors, namely
[25]
–
‘
(a)
the
emotional, family, community or occupational ties of the accused to
the place at which he or she is to be tried;
(b)
the assets
held by the accused and where such assets are situated;
(c)
the means,
and travel documents held by the accused, which may enable him or her
to leave the country;
(d)
the extent,
if any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e)
the question
whether the extradition of the accused could readily be effected
should he or she flee across the borders of the Republic
in an
attempt to evade his or her trial;
(f)
the
nature and the gravity of the charge on which the accused is to be
tried;
(g)
the strength
of the case against the accused and the incentive that he or she may
in consequence have to attempt to evade his or
her trial;
(h)
the nature
and gravity of the punishment which is likely to be imposed should
the accused be convicted of the charges against him
or her;
(i)
the
binding effect and enforceability of bail conditions which may be
imposed and the ease with which such conditions could be breached;
or
(j)
any
other factor which in the opinion of the court should be taken into
account.’
[16]
Section 60(8) provides that –
‘
[i]n
considering whether the ground in subsection (4)
(d)
has been established, the court may, where applicable, take into
account the following factors, namely –
(a)
the fact that the accused, knowing it to be false,
supplied false information at the time of his or her arrest or during
the bail
proceedings;
(b)
whether the accused is in custody on
another charge or whether the accused is on parole;
(c)
any previous failure on the part of the accused to
comply with bail conditions or any indication that he or she will not
comply
with any bail conditions; or
(d)
any other factor which in the opinion of the court
should be taken into account.’
[17]
Section 60(9) provides additional guidance:
‘
In
considering the question in subsection (4) the court shall decide the
matter by weighing the interests of justice against the
right of the
accused to his or her personal freedom and in particular the
prejudice he or she is likely to suffer if he or she
were to be
detained in custody, taking into account, where applicable, the
following factors, namely –
(a)
the period for which the accused has already been
in custody since his or her arrest;
(b)
the probable period of detention until the
disposal or conclusion of the trial if the accused is not released on
bail;
(c)
the reason for any delay in the disposal or
conclusion of the trial and any fault on the part of the accused with
regard to such
delay;
(d)
any financial loss which the accused may suffer
owing to his or her detention;
(e)
any impediment to the preparation of the accused’s
defence or any delay in obtaining legal representation which may be
brought
about by the detention of the accused;
(f)
the state of health of the accused; or
(g)
any other factor which in the opinion of the court
should be taken into account.’
[18]
Bearing
in mind the importance of personal liberty and the presumption of
innocence, the appellants have the right to be released
on bail,
subject to reasonable conditions, if the interests of justice
permit.
[26]
Before refusing
bail, the court must be satisfied that there is a probability, and
not a mere possibility, of one or more of the
factors mentioned in s
60(4) of the CPA occurring.
[27]
It is for the appellant to show that the court
a
quo
overemphasised aspects which militate against the granting of bail,
whilst aspects in favour of the appellants were not given sufficient
weight:
[28]
‘
I
am of the view that this court can only conclude that the court
a
quo
was “wrong” if it
considers all the relevant aspects for and against the granting of
bail to the appellant. If this
court then is of the view that the
court
a quo
,
in the light of all these circumstances, should have granted bail to
the appellant, the only conclusion would then be that the
court
a
quo’s
decision was wrong …
Thus, to be successful in this appeal the appellant will have to show
that the court
a quo
overemphasised
aspects which militate against the granting of bail, whilst aspects
in favour of the appellant were not given sufficient
weight. It
speaks for itself that, if this court cannot conclude that the court
a quo
wrongly weighed up the points for and against the granting of bail,
this court would not be at liberty to consider the issue of
bail
afresh. The court
a quo’s
decision will have to stand.’
The decision to refuse
bail
[19]
The
court
a
quo
correctly held that the onus was on the State to adduce evidence to
show on a balance of probabilities that it would not be in
the
interests of justice for the appellants to be released on bail, given
the nature of the alleged offences. The magistrate also
correctly
identified various relevant subsections, cited above, in determining
the applications, emphasising the need to weigh
the interests of
justice against the appellants’ rights to personal freedom and,
particularly, any prejudice likely to be
suffered as a result of
detention.
[29]
[20]
Considering the nature of the evidence led,
the court
a quo
cannot be faulted for focusing specifically on s 60(4)
(b)
and s 60(4)
(d)
,
coupled with s 60(6), s 60(8) and s 60(9). The magistrate had regard
to the evidence tendered by way of affidavit, including undisputed
information from the Department of Home Affairs reflecting that the
appellants were both undocumented. It was therefore accepted
that the
appellants were not lawfully present in the country. This fact,
coupled with the lack of a fixed address, was emphasised,
it being
noted that addresses at ‘Martindale Farm’ and Makhanda
had been provided, as well as a false residential address
in Gqeberha
in respect of one of the appellants. The court
a
quo
ultimately rejected the
applications for bail, concluded as follows:
‘
From
what has been tendered before this Court, the Court can safely prove
that the provisions of section 60(4)
(b)
as well as
(d)
have been proved by the State. That indeed, they are flight risks.
They do not have passports. They do not have emotional ties,
family
ties. And the State did not address the Court in as far as
extradition. The strength of the State’s case remains strong.
Nothing was said coming from the applicants. Now the Court also has
to look at the binding effect and enforceability of bail conditions
which may be imposed … And also the fact that they do not have
fixed addresses. All these addresses that they have mentioned.
They
are leased by an unknown person or an unknown Chinese who could not
come and assist the Court. They tendered evidence that
they are
employed. As to where? Nobody knows. It remains unclear or not true
or as evidence that is being furnished as false. So,
the Court is not
convinced, taking into account everything in totality.’
The appeal
[21]
Various grounds of appeal are raised in the
appellants’ amended notice of appeal. Leaving aside those
grounds based upon the
application to adduce new evidence, the crux
of the complaint is that the magistrate failed to properly analyse
and consider all
the evidence in determining the interests of
justice, in the context of the applicable constitutional and
legislative framework,
including s 60(4). This bearing in mind that
the State had adduced evidence by affidavit. The fact that the
appellants have no
previous convictions or other pending cases was,
it is submitted, not afforded the proper weight and the court
a
quo
also erred in failing to find that
the State’s case was ‘non-existent or open to serious
doubt’. The finding
that the appellants do not have fixed
addresses and furnished false addresses to the police is also
challenged.
Analysis
[22]
The appellants are charged with schedule 1
offences so that the State bore the onus of proving that it is not in
the interests of
justice for the appellants to be granted bail. Did
the State do so on a balance of probabilities or did the magistrate
exercise
their discretion in refusing bail wrongly?
[23]
Considering
the list of factors contained in s 60(6) of the CPA, I am unable to
find that the decision of the court
a
quo
was wrong. No real emotional, family, community or occupational ties
of the appellants to the place where they are to be tried
is
apparent. That both appellants indicate that they have been in the
country for five years and stayed at the farm where they
were
apprehended since September 2023, in unexplained circumstances, does
not alter the position. There is also no explanation
of the link
between the appellants and the address they provided during their
bail applications and as an alternative address to
the police, a
property seeming the subject of a sale to a Chinese national. Neither
appellant holds any assets. Both entered the
country unlawfully,
suggesting that the absence of travel documents will not be a bar to
their departure pending trial.
[30]
Both face serious charges and the nature and gravity of the
punishment which is likely to be imposed should the accused be
convicted
also count against them. As a further consideration, no
information was forthcoming as to the identity of their employer or
the
location of their work.
[24]
It
is apparent from the summary of the decision of the court
a
quo
that little or no weight was attached to the strength of the case
against the accused. This is unsurprising when considering the
contents of the affidavit relied upon by the State: Warrant Officer
Fullarton made no mention of a strong case, relying only on
the
serious nature of the charges and possibility of lengthy prison
terms, in addition to the factors directly relevant to possible
trial
evasion. The nature and gravity of the charge is a distinct
consideration from the strength of the case against the accused,
in
terms of s 60(6). Counsel for the State also made no mention of any
matter indicative of a strong case, closing the State’s
case
once Fullarton’s affidavit was read into the record and the
various affidavits were admitted into evidence. The affidavits
of the
appellants, read into the record by their representative during the
bail proceedings, made no mention of any consideration
relevant to
the strength of the case against them, both appellants choosing not
to disclose the basis of their defence until trial.
The entire
paragraph of the judgment referring to the strength of the State’s
case constituted an attempt to apply ss 60(4)
(b)
and
(d)
,
as confirmed by the explicit reference in the paragraph to elements
contained in those subsections. To the extent that the court
a
quo
considered
the State’s case against the appellants to be strong, it may be
criticised for doing so in blanket fashion, as
opposed to specifying
that the comment was only applicable in respect of count 3. The
strength of the State’s case in respect
of that count cannot be
gainsaid. Even if this were not the case, the other factors remain in
force and justify the outcome reached
by the magistrate, the central
issue being whether the interests of justice permit release on bail,
rather than an assessment of
the strength of the State’s
case.
[31]
[25]
The
record reflects that the appropriate factors were given due
consideration by the court
a
quo
.
Cumulatively they are such that on the probabilities there is a
likelihood that the appellants, if released on bail, will attempt
to
evade trial. The magistrate cannot be faulted for arriving at that
conclusion, based on s 60(4)
(b)
read with s 60(6), balancing the interests of justice against the
right of the appellants to their freedom in an appropriate manner.
In
coming to this conclusion, I am mindful of the constitutional basis
upon which s 65(4) ought to be interpreted whenever a court
of appeal
exercises its appellate authority in bail proceedings.
[32]
[26]
It is accordingly unnecessary to consider
whether there is the likelihood that the appellants, if released on
bail, will also undermine
or jeopardise the objectives or the proper
functioning of the criminal justice system, including the bail
system, merely because
of the different addresses provided to the
investigating officer and in their bail applications.
Order
[27]
The appeals against the court
a
quo’s
refusal to grant bail are
dismissed.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
05 March 2024
Delivered:
07 March 2024
Appearances:
For
the Appellants:
Peter Daubermann
Peter
Daubermann Attorneys
Suite
701
Seventh
Floor
Oasim
South
Pearson
Street
Central
Gqeberha
6001
Tel.
082 55 33710
Email:
lawyer.za@gmail.com
For
the Respondent:
Adv M. van Rooyen
Director
of Public Prosecutions
Makhanda
046 602
3000
Email:
mvanrooyen@npa.gov.za
[1]
Act
18 of 1998.
[2]
Act
13 of 2002.
[3]
S
v De Jager
1965
(2) SA 612
(A);
Seedat
v
S
[2016] ZASCA 153
para 21.
[4]
S
v Janssen
2010
(1) SACR 237
(ECG) para 2.
[5]
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) at 63
e
–
64
a
.
[6]
S
v Schietekat
1998
(2) SACR 707
(C) at 713
h
–
714
a
.
[7]
S
v Yanta
2000
(1) SACR 237
(Tk) at 246H – I.
[8]
S
v Ho
1979
(3) SA 734
(W) at 736E – H. The reference to the ‘1917
Act’ is to the repealed Criminal Procedure and Evidence Act,
1917.
[9]
S
v Yanta
above
n 7 at 249E – J. See
S
v Baleka and Others
1986 (1) SA 361
(T) at 375E–J: if, after refusal, new facts
arise or are discovered, provision is implicitly made by s 65(2) for
the renewal
of the bail application in order to place the new facts
before the lower court, it being ‘expressly provided that new
facts
which arise or are discovered after the decision appealed
against may not be used as the basis for an appeal unless they have
first been placed before the magistrate who gave the decision
appealed against, and he has also given a decision against the
accused in the light of such new facts …’
[10]
See
S
v EB
2010
(2) SACR 524
(SCA) para 5.
[11]
Mziako
v Director of Public Prosecutions, Transvaal & Another
2001
(2) SACR 231
(T);
Cf
S
v Marx
1992
(2) SACR 567
(A) at 573
i–j
;
S
v Swart
2004
(2) SACR 370
(SCA) para 6.
[12]
S 316(5)
(a)
:
‘An application for leave to appeal under subsection (1) may
be accompanied by an application to adduce further evidence
…’.
Constitutional
appeals are governed by different considerations altogether. In
exceptional circumstances, and in terms of its
inherent
jurisdiction, the SCA may also order the reopening of a case before
a trial court: see N Whitear-Nel ‘Evidence’
(2010) 2
SACJ
289.
[13]
Act
58 of 1959.
[14]
Act
10 of 2013.
[15]
Cf
Mulala
v S
[2014]
ZASCA 103.
[16]
S
v Ndweni and Others
1999
(2) SACR 225
(SCA) at 230B–D.
[17]
See
S
v Udeobi
(unreported, ECG case no 158/2018, 13 July 2018).
[18]
See
S
v Green and Another
[2006] ZASCA 3
;
2006 (1) SACR 603
(SCA) para 25, the court making no order on appeal
as to bail.
[19]
Ibid.
[20]
S
v Nwabunwanne
2017
(2) SACR 124
(NCK) para 25.
[21]
S
65(4) of the Criminal Procedure Act, 1977 (Act 51 of 1977) (‘the
Act’). Cf
Bechan
and Another v SARS Customs Investigations Unit and Others
[2024] ZASCA 20
para 22.
[22]
S
v Barber
1979
(4) SA 218 (D)
[23]
Ibid
at 220E – G.
[24]
Alehi
v S
[2021]
ZAGPPHC 492;
2022 (1) SACR 271
(GP) para 21.
[25]
S
60(6) of the CPA.
[26]
S
v Branco
2002
(1) SACR 531
(W) at 532H and following.
[27]
S
v Diale
and
Another
2013 (2) SACR 85
(GNP) para 14.
[28]
S
v Zondi
2020
(2) SACR 436
(GJ) para 14.
[29]
S
60(9) of the CPA.
[30]
See
S
v Mwaka
2015 (2) SACR 306
(WCC) para 20.
[31]
S
v Udeobi
above
n 17 para 11;
S
v Malumo & 111 Others
(2)
2012 (1) NR 244
(HC) para 30.
[32]
S
v Porthen & Others
2004
(2) SACR 242
(C) paras 17, 18.