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2023
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[2023] ZAFSHC 218
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Ntsasa v S (A61/2023) [2023] ZAFSHC 218 (29 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal number:
A61/2023
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the appeal between:
JIM
MOHAU NTSASA
Appellant
And
THE
STATE
Respondent
CORAM:
VANZYL,
J
HEARD
ON:
28
APRIL 2023
DELIVERED
ON:
12 MAY
2023; 29 MAY 2023
[1] This
is an appeal against the decision of the court a
quo
to cancel
the appellant's bail in terms of section 68 of the Criminal Procedure
Act, 51 of 1977 ("the Act") during proceedings
in the
Magistrate's Court, for the district of Mangaung, held in
Bloemfontein.
Order:
[2] On
12 May 2023 I made the following order in this appeal:
"1.
The appeal against the withdrawal of the bail of the appellant on 16
March 2023, succeeds.
2.
The
order of the court a quo in the Magistrate's Court for the district
of Mangaung, held at Bloemfontein, under case number 20/712/2022,
dated 16 March 2023, is set aside.
3.
The
bail of the appellant is reinstated on the same terms and conditions
as when it was granted on 4 November 2022.
4.
In
addition to the aforesaid terms and conditions, the following bail
conditions will also apply:
4.1
The
appellant is prohibited from having any contact of whatsoever nature
and in whatsoever manner, directly or indirectly, with
any employee
of and/or any person attached to the office of the Director of Public
Prosecutions, Bloemfontein.
4.2
Should
the investigating officer provide the appellant with the names of any
additional potential state witnesses, as provided in
paragraph 5
hereunder, the appellant is also prohibited from having any contact
of whatsoever nature and in whatsoever manner,
directly or
indirectly, with such witnesses.
5.
Should
there be any further potential state witnesses, who fall outside the
ambit of the groups of people already described in the
original bail
conditions, read with the additional bail conditions, the
investigating officer is ordered to forthwith provide the
appellant
with the names of such additional potential state witnesses."
[3] I
hereby provide the reasons for the said order.
Applicable
legal principles:
[4] The
cancellation of bail is tantamount to a refusal of bail
and is
consequently appealable. See
S v Porrit
2018 (2)
SACR 274
(GJ) at para [9].
[5] An
accused has an automatic right of appeal against a lower
court's
decision to cancel bail in terms of section 68 of the Act. See
S
v Ngumashe
2001 (2) SACR 310
(NC) at para [14].
[6] Sitting
as a court of appeal with regard to the order of the
court a
quo
to cancel the appellant's bail, I may only interfere with the
said order if I am convinced that it is wrong. See
S v
Nqumashe,
supra,
at para [20]. See also
S v Petersen
2008 (2) SACR 355
(C) at paras [61]
- [62].
[7] However,
one also has to remain mindful of the right of an accused
"to
be
released from detention if the interests
of
justice permit,
subject
to
reasonable
conditions",
as provided in s 35(1
)(f)
of the Constitution.
[8] Section
68 of the Act determines,
inter alia,
as follows:
"Cancellation of
bail
(1)
Any
court before which a charge is pending in respect of which bail has
been granted may, whether the accused has been released
or not, upon
information on oath that-
(a)
the accused is
about to evade justice or is about to abscond in order to evade
justice;
(b)
the
accused has interfered or threatened or attempted to interfere with
witnesses;
(c)
the
accused has defeated or attempted to defeat the ends of justice;
(cA)
the
accused has contravened any prohibition, condition, obligation or
order imposed in terms of-
(i)
section 7 of the Domestic Violence Act, 1998;
(ii)
section
10 (1) and (2) of the Protection from Harassment Act, 2011; or
(iii)
an order in terms of any other law, that was issued by a court
to protect the person against whom the offence in question was
allegedly
committed, from the accused;
(d)
the
accused poses a threat to the safety of the public, a person against
whom the offence in question was allegedly committed, or
any other
particular person;
(e)
the
accused has not disclosed or has not correctly disclosed all his or
her previous convictions in the bail proceedings or where
his or her
true list of previous convictions has come to light after his or her
release on bail;
(eA)
the
accused has not disclosed that-
(i)
a
protection order as contemplated in
section 5
or
6
of the
Domestic
Violence Act, 1998
;
(ii)
a
protection order as contemplated in
section 3
or
9
of the Protection
from Harassment Act, 2011; or
(iii)
an
order in terms of any other law, was issued by a court to protect the
person against whom the offence in question was allegedly
committed,
from the accused and whether such an order is still of force;
(eB)
the accused has not disclosed or correctly disclosed that he or
she is or was, at the time of the alleged commission of the offence,
a sentenced offender who has been placed under correctional
supervision, day parole, parole or medical parole as contemplated in
section 73 of the Correctional Services Act, 1998;
(f) further
evidence has since become available or factors have arisen, including
the fact that
the accused has furnished false information in the bail
proceedings, which might have affected the decision to grant bail; or
(g)
it
is in the interests of justice to do so,
issue a warrant for the
arrest of the accused and make such order as it may deem proper,
including an order that the bail be cancelled
and that the accused be
committed to prison until the conclusion of the relevant criminal
proceedings."
[9] Section
66 of the Act is similar to section 68, but section
66 deals with the
failure by an accused to observe a condition of bail. In this regard
section 66(1) of the Act determines as follows:
"66 Failure by
accused to observe condition of bail
(1) If an accused is
released on bail subject to any condition imposed under section 60 or
62, including any amendment or supplementation
under section 63 of a
condition of bail, and the prosecutor applies to the court before
which the charge with regard to which the
accused has been released
on bail is pending, to lead evidence to prove that the accused has
failed to comply with such condition,
the court shall, if the accused
is present and denies that he or she failed to comply with such
condition or that his or her failure
to comply with such condition
was due to fault on his or her part, proceed to hear such evidence as
the prosecutor and the accused
may place before it.
(2)
(3) ... if the court
finds that he failed to comply with such condition, the court may, if
it finds that the failure by the accused
was due to fault on his
part, cancel the bail and declare the bail money forfeited to the
State.
(4) "
[10] The
onus
is upon the State to satisfy the court on a balance of
probability that there are sufficient grounds for cancellation of
bail in
terms of section 68 of the Act. See
S v Ngumashe,
supra,
at 314C - 314F.
[11] There
is a connection between sections 68 and 60, in that the grounds that
can
lead to cancellation of bail are related to the criteria
considered in terms of section 60(4) at the initial consideration of
bail.
See
S v Kyricou
2000 (2) SACR 704
(0) at
711A- 8.
[12]
The following extract from
Du Toit: Commentary on the
Criminal
Procedure Act,
Edu
Toit
et al,
Revision Service
69, 2022, Jutastat, at RS 63, 2019 ch9 - p. 45, deals with
section
60(4)(c)
, read with section 60(7) of the Act, which principles are,
in my view, also applicable to section 68, especially in the
particular
circumstances of the present matter:
"Van der Berg
Bail-A
Practitioner's Guide
3 ed (2012) at 146-7 observes as follows
(emphasis in the original):
'In assessing the risk of
interference with state witnesses (and, if bail is granted, in
formulating bail conditions) the court
must
identify
the state witnesses. It is submitted that it is correct to
include all
potential
witnesses, but not co-accused
. It is
unacceptable to leave it to the accused to speculate who the
witnesses might be, and to expect him to regulate his conduct
in
accordance with such speculation.
Regrettably, a trend has
developed whereby prosecutors tend to withhold witness statements and
the names of proposed witnesses
from the accused under the guise of
implied threats of intimidation of the witnesses.
This places the
accused in the impossible position of having to guess with whom he
should refrain from communicating
. The underlying reasoning of
such prosecutors is, of course, fundamentally flawed:
if it is
alleged that the accused has threatened a witness, it follows as the
night the day that he must be
aware
of
the
identity
of
the
witness!
The practice suggested in
Dockrat
whereby
the accused should be given a list of names of persons with whom he
should not communicate about the case is commendable
and should be
followed.' (My emphasis added)
Gade
v S
[2007] 3 All SA 43
(NC) is an example of a case where the
court granting bail to the accused on condition that there
should be no interference
with or intimidation of State
witnesses-specifically ordered the prosecution to supply the accused
with a list of prosecution witnesses
(at [331])… "
[13] I
am very mindful of the fact that the withdrawal of the bail in the
present
matter was done in terms of section 68 of the Act and not due
to the failure to have complied with a bail condition as provided
for
in section 66 of the Act. However, in my view certain of the
principles relating to bail conditions are very applicable to
the
matter
in casu.
In
Commentary on the
Criminal
Procedure Act,
supra
,
at RS 63,
2019 ch9-p89 the following applicable principles are stated, with
reference to relevant case law:
"Secondly,
bail
conditions should be neither vague nor ambiguous (S
v Budlender
1973 (1) SA 264
(C)
271A;
Ex parte Huysamen
1902
SC 393
;
S v Russell
1978 (1) SA 223
(C)
226E). Clear
formulation of conditions is necessary 'to avoid misunderstandings
regarding compliance' (Mokoena
A Guide
to Bail
Applications
2 ed (2018) 135)....
In the ordinary course of
events a condition which prohibits communication with a 'State
witness' should be taken to include 'potential
State witness'
(R v
Dockrat
1959 (3) SA 61
(D)
62).
S v Josephs
2001
(1) SACR 659
(C)
669 is an example of a case where the witnesses
concerned were identified by name. The court may order the
prosecution to furnish
the successful bail applicant with a list of
State witnesses. This was done in
Gade v S
[2007] 3 All SA 43
(NC) at [33]. It is submitted that for the sake of clarity a bail
condition prohibiting communication with State witnesses ought
to
refer to direct as well as indirect communication (as was done in
Jacobs
&
others v S
[2004] 4 All SA 538
(T)
at [19]).
Referring
to what Harcourt J said in
S v Casker
&
another
1971
(4) SA 504
(N) at 510 as regards State witnesses, Mokoena
A
Guide to Bail Applications
2 ed (2018) 139 observes as follows:
'Clearly the phrase
"state witnesses" casts the net too wide for comfort. It
would not be remiss for the State to provide
a list of all the
persons who are regarded as State witnesses and who should,
therefore, not be communicated with. This list of
witnesses can then
be relayed to the accused, either at the initial release or during
the course of any subsequent remand. In such
circumstances, the
accused cannot be heard to say that he or she was not aware of the
identities of the witnesses. It should be
noted, however, that
identification of the State witness by name only may not be
sufficient.'
[14] In
R v Dockrat
1959 (3) SA 61
(N) at 62 H - 63 A
the following was stated in respect of the desirability that bail
conditions are to be properly and clearly
stated and that
consideration should be given to provide the names of potential state
witnesses to an accused when prohibiting
communication or contact
with state witnesses:
"This application
underlines the difficulties which may arise if the conditions
of bail are not very carefully stated. It might prove much
better in the interests of all concerned if, for example, the
condition
was that an accused person was not to communicate with
persons whose names were given to him by the investigating officer
and also
any persons who had given a written statement to the Police.
I do not presume to lay anything down as to what must be done but
suggest that more careful statements of conditions of bail seem to be
desirable.''
(My emphasis)
Consideration
of the proceedings in the court a
quo:
[15] It
is trite that for purposes of the adjudication of this appeal, as is
the
case in all other appeals in respect of legal proceedings, the
parties and I are restricted to the record of proceedings in the
relevant court a
quo.
We are not at liberty to take any facts
or circumstances beyond those reflected on the record, into
consideration.
[16] In
this particular appeal I deem it necessary to quote extensively from
the
transcribed record of the relevant proceedings on the respective
dates in the court a
quo.
Furthermore, I deem it practical and
apposite to record my remarks with regard to certain parts of the
record in between my quotations
from the record, so as to exclude the
necessity of having to unnecessary repeat parts of the quotations
from the record later in
my judgment.
[17] The
record of the proceedings of 4 November 2022, reflects that the
following
bail conditions were requested by the prosecutor:
"The first
condition, Your Worship, is that the accused is not allowed to enter
the office of the Director of Public Prosecutions
as the
investigations are still ongoing.
The second one Your
Worship, is that the accused is not allowed to go to the Puma Garage
in Glen Road, Hilton or have any contact
with petrol attendants or
the manager of Puma Garage.
The third one is that the
accused may leave the district of Bloemfontein if he informs the
investigating officer in the matter which
is Warrant Officer Pule.
Those are the three
conditions Your Worship, that we request they be attached to the bail
application."
[18] When
the appellant was asked by the presiding Magistrate whether he has
any
objections to the aforesaid bail conditions, the appellant stated
that he had no objection and he furthermore,
inter alia,
stated
that
"[L]ike they stated I
am
not going to any of
those places that they have mentioned".
[19] The
record reflects that the presiding Magistrate thereupon fixed bail at
R1500.00
and further stated the following to the appellant:
"Conditions are
added that you may not enter the offices of the OPP.
You may not enter Puma
Garage, Glen Road, Hilton and you may not contact the manager or the
employees.
You may not leave the
Bloemfontein district without the consent of the investigating
officer, Warrant Officer Pule."
[20] The
subsequent proceedings were on 9 December 2022 when the matter was on
the
roll for further investigation and during which proceedings the
prosecutor requested another postponement for further investigation.
On face value of the record these proceedings served before a
different presiding Magistrate and prosecutor than the previous
proceedings, although a certain part of the transcribed proceedings
creates the impression that it was the same presiding Magistrate.
The
record reflects the following proceedings relevant to the present
appeal:
"PROSECUTOR:
Then lastly Your Worship, although the State is not making an
application in terms of
section 68
, that maybe the Court may warn Mr
Ntsasa, Your Worship, to refrain from sending messages to the
witnesses. There was such which
was reported prior to this sitting,
Your Worship, and secondly, Your Worship, that when he leaves
Bloemfontein he informs the investigating
officer. Yesterday the
investigating officer found out that he was in Botshabelo and as part
of the bail conditions is it that
if he leaves Bloemfontein he must
inform the investigating officer, Your Worship. If he can just be
warned, Your Worship.
COURT:
The bail
conditions, during the bail when you are granted bail, I also gave
that to you, the conditions.
ACCUSED:
Yes.
COURT:
Yes. And
one of those conditions was that you must not have any contact with
the witnesses in this matter.
[This is not correct. The condition
which
prohibited
contact
with
persons
was
only
in relation to the manager and the employees of the Puma garage, Glen
Road, Hilton.]
ACCUSED:
Okay
COURT:
Furthermore, do not have any contact with witnesses in this matter,
interfere with the police investigations and not evade your
trial.
ACCUSED:
No
problem, but in terms of the region, because I thought Botshabelo and
Thaba Nchu we are still in Mangaung, so they were supposed
to explain
to me.
…
Ja, Botshabelo because we
are one municipality.
COURT:
Good.
ACCUSED:
Yes.
COURT:
Now I am
going to warn you to hear if the Court says that you must not have
any contact with the witnesses or complainants, it
says, WhatsApp,
Twitter, Message, Telegram, meaning all the social medias of the
world.
…
Not to have any contact
whatsoever with the witnesses in this matter.
[I
accept that this
warning constituted a valid warning by the Court,
irrespective
of the fact that
it was
not a bail
condition.]
…
[21]
The record of the proceedings held on 16 March 2023 reflects the
hearing in terms of
section 68
for the withdrawal of the bail of the
appellant. On face value of the record it seems that the same
Magistrate who initially presided
when bail was granted to the
appellant on certain conditions, presided over the said hearing. The
prosecutor was a different person
than on the two previous occasions.
[22] The
State called the investigating officer, Warrant Officer Pule, as a
witness.
It is necessary to quote extracts from his evidence:
"PROSECUTOR:
Your Worship. Warrant Officer, how long have you been in the police
service?
MR PULE:
I have
got 20 years in the service.
PROSECUTOR:
To
which unit are you attached?
MR PULE
: I am
working for DPCI, Serious Corruption Investigation Unit.
PROSECUTOR:
…
Okay, thank you. Warrant Officer, you are the investigating officer
in this Navalsig CAS 12/11/2022. Sir, in this matter
bail was granted
on 4 November 2022 with conditions that the accused should not make
contact or should not contact the witnesses
or the people at the
DPP's office. What happened after 4 November 2022?
[This
is
not correct.
There
was
no
bail
condition
that
the
appellant
should
not
"contact
the
witnesses
or
the
people
at
the DDP's
office". The
condition
was that
he
was not
allowed
to enter the DPP's office.]
MR PULE:
Your
Worship, after 4 November 2022 the accused was read the bail
condition to him and he agree with them, then he was released
on
bail.
One of the conditions was that he must not contact any
witnesses in this case;
he must not be at DPP's office.
[This
was not a bail condition.]
...
On 6 November after the
accused was released on bail, I was called by Mr Lemmer Ludick who is
the Director at DPP's office. He is
the head of the support. Mr
Ludick called me, and he explained that they received the SMSs from
the accused person. However, I
brought the matter to Mr Lieb and Mr
Bathi as they are the Prosecutors that I am working with. However,
they explained to me that
let us give him chance so that on the next
court date Your Worship can warn him again.
Indeed, on 9 December
2022 the bail conditions were read to him again as per the charge
sheet, that he must not consult with any
witnesses, direct or
indirect.
[This
was
not a
bail
condition. However, as
indicated earlier,
the
appellant was
warned by the
court in
this
regard on 9 December
2022.]
In between there Your Worship, I explained to the
prosecutor that someone called me and explained to me that the
accused person
was in Botshabelo. I explained to the prosecutor that
they must explain these things thoroughly to him that he must
understand
that. They did explain that however, during December, late
December, the accused person sent me an SMS saying to me he will be
going to Botshabelo. That was the last time when he said that to me.
Recently now I received a call on 3 March 2023 from one of
the
witnesses. The witnesses just explained to me that the accused person
called him on her cell phone. While interviewing the
witness, because
the witness was aware of the bail conditions, I asked the witness
what number did she receive the call from. I
physically looked at the
phone of the witness and the number that called the witness, it was
082 and that number I recognise it
because it is there in my docket
that I was given by the accused person on his arrest. I verified that
number; for surely it was
the accused's umber. There was a
communication between the two and I obtained a statement in that
regard. The statement was saying
that you must ensure the little
house that you are having because I am going to burn it down.
Furthermore the statement was talking
about the sisters of the
witness. That is the statement that I obtained on the 13th, and I
took that statement to Adv Lieb to explain
this issue to him and
Chief Mahloko, who encourage me to file a statement and we went to
the magistrate. The magistrate issued
a J50 for the accused. The very
same the 13th we went to arrest the accused as per the allegation.
That is where we are before
this Court today."
[23] Warrant
Officer Pule continued and presented evidence as to what transpired
during the arrest of the appellant. According to his evidence the
appellant resisted arrest. Warrant Officer Pule testified that
during
his arrest the appellant was informed that he was arrested for having
"violated the bail conditions
by calling
Ms Fouche, which is the witness".
[24] During
cross-examination on behalf of the appellant, the witness was asked
whether
the appellant was informed who the witnesses are, where after
the following evidence transpired:
"MR PULE
:
Your Worship, the accused is quite clear. He is quite aware who are
the witnesses. It is very unfortunate Your Worship, the person
that I
wanted her to print the messages that I can present before the Court
that was sent on the 16th, he was very aware. If Your
Worship can
allow me, I can take my phone and read them so that the Court can be
aware of that.
COURT:
Yes, thank
you, you can do that.
MR PULE:
I can do
so, Your Worship. Your Worship, the first message I will read it was
forwarded from Mr Lemmer Ludwick.
'The official complaint
that Mr Ntsasa is pestering them, can I do something? He also Whats
App'd me but do not reply.'
That is the first
message. The second message it reads as follows.
'Please find out if it is
possible to work at TTC office and facilities duties only while
policemen looking information at fleet.'
I will read the third
one.
'I fail to understand why
you open a criminal case against me instead of disciplinary or
written warning to start inside with regards
to NPA regulations, but
it is fine. You choose that route. God will preserve me because he
knows me. Every day I pray for God protection
and save my job because
I need that job for my family and the Church of God.'
Number 4.
'I ask Lord every hour
all expectations of my advisories forever frustrated.'
That is the message that
I received from Mr Ludwick.
…”
[25] At
that stage the court adjourned to move to a different court in order
to listen
to the audio recordings of the proceedings on 4 November
2022 and 9 December 2022 respectively. When everybody returned to the
court where the
section 68
application was being heard, the presiding
Magistrate placed the details of the aforesaid proceedings which were
relevant to the
section 68
application, on record, where after the
hearing proceeded.
[26] Thereafter
the appellant testified under oath.
[27] He
testified that he was arrested at the offices of the OPP on 4
November 2022
and that he was taken to court. The appellant further
testified that the bail conditions were stated to him in court on the
same
date, 4 November 2022. With regard to the 5
th
of
November 2022, the appellant testified as follows:
"Marlene Fouche on
the 5th of November she sent me a WhatsApp,
here it is an exhibit
on my phone
, but I did not respond to it. I blocked her on that
time because I did not know which one is a witness, which one is not
a witness."
(My emphasis)
[28] The
appellant was asked whether he knows who opened the case against him,
to
which he responded as follows:
"APPLICANT:
Not at all. I do not have any idea. What I heard only is only the
Chief Prosecutor that, down the line there was a media briefing
that
one, two, three, somebody was arrested. I do not know. I thought it
is him, the Chief Prosecutor. There he is sitting there.
I do not have any idea
who opened, because all this time I thought it is the Chief who
opened that case, because he is the one,
apparently, he sent the
warrant of arrest. I thought it is him. I do not, all along my mind
is that."
[29] The
evidence continued as follows:
"MR MASUNYANE:
So now during the proceedings of the court when the bail conditions
were read, were you, was it explained to you who are the witnesses?
APPLICANT:
Not at
all; not at all."
[30] The
appellant was subsequently asked as to what happened on 13 March 2023
which
lead to his arrest, to which he responded as follows:
"APPLICANT:
Yes. The 13th of this month I did call Marlene Fouche because last
year I, early this year I wrote exam and then I did not have
my
books. Remember, on the 4th of November I was arrested by almost
eight officials of Hawks. I did not have taken even my study
materials. I left the office to Bainsvlei to court on that day. Then
along the way they say I am arrested regarding one, two, three,
and
then I was still shocked and asking myself what happened. Then even
the Chief knows that I do have a good relationship with
our employee,
and I do assist all out."
[31] The
cross-examination of the appellant then followed.
[32] The
prosecutor enquired from the appellant whether he understands what
the charge
against him is, to which the appellant testified that he
was
"still confused, because I still want to know what are
the charge against me, because they talk about the fraud they talk
about
some other, I saw it on that paper when they write it there. I
am not quite sure. Would you please explain to me
so
that I
can understand
it right now?"
[33] The
prosecutor then read the
"annexure to the charge sheet"
to the appellant form which it appears that counts 1- 3 against
the appellant are fraud, forgery and uttering, with theft as an
alternative to count 1, which were allegedly committed between 31
March 2022 to 29 July 2022. From the said annexure it further
appears
to be the State's case that the appellant was appointed at the
National Prosecuting Authority, Bloemfontein, as an administrative
clerk. His responsibilities included, amongst others, fleet
management. As fleet manager he had access to petrol cards used as
part of the NPA's vehicle fleet. It is further alleged that the three
counts originate from,
inter alia,
the allegation that the
appellant filled his personal vehicle, to wit a Isuzu, with fuel
during the alleged period of time to an
amount of R110 000.00 with a
petrol card for fleet vehicles of the NPA on the alleged different
dates between 31 March 2022 to
28 July 2022. The said annexure to the
charge sheet further contains allegations that counts 1, 2 and 3, as
well as the alternative
count to count 1, were committed against
"National Prosecuting Authority and I or Lemmer
Ludick".
[34] The
prosecutor then posed it to the appellant that the nature of the
aforesaid
counts makes it evident why one of the bail conditions was
that the appellant is not allowed to enter the offices of the OPP.
The
prosecutor further stated the following:
"PROSECUTOR:
And the witnesses of the National Prosecuting Authority, you were
warned not to make contact with the witnesses. Obviously the
people
of the National Prosecuting Authority that worked in your office
would be witnesses."
[Insofar as this statement was meant to
state
that
the
appellant
was
specifically
warned not
to
make contact with the witnesses of or the people at the DPP's
office, it is not correct.
He was only warned in
general not to make contact with the witnesses or the complainants.]
The
appellant responded as follows:
"APPLICANT:
Yes, like I said, I read the SMS from Marlene and I do not know
whether Marlene is a witness, because she is my colleague. She
sent
me a SMS "
[35] The
appellant was confronted with the fact that he sent messages to Mr
Ludick, whilst
Mr Ludick is the complainant. The appellant explained
that he did not know at the time that Mr Ludick is the complainant,
he thought
that it was the Chief prosecutor who opened the case. He
testified that Mr Ludick still sent him messages on the Friday, the
day
of his arrest, enquiring whether the appellant was coming to
work. Mr Ludick was his supervisor and he trusted Mr Ludick. The
record
further reflects the following:
"PROSECUTOR:
That on the 9th of December they said you should not make contact
with the witnesses.
APPLICANT:
Did I,
do I know the witnesses? When I look at you, do I know the witnesses?
I said to the Court now I knew it is the Chief who
opened the case
because there was a media briefing after I was arrested. I thought it
is him, not Lemmer. I did not know it is
my supervisor who opened the
case at all. I do not have any idea of who or what, so I
.[intervenes]
PROSECUTOR:
You
obviously knew you were arrested for something that went wrong in
your workplace, is that correct?
APPLICANT:
Yes.
PROSECUTOR:
So the
logical explanation would be there is a problem at your workplace,
your witnesses, the people at your workplace would obviously
be the
witnesses. Now you are making contact with them.
APPLICANT:
The
thing is he contact me on Friday morning. I did not know if there was
something like this. I did not know at all. What I see,
looking at
it, it is Lemmer who opened the case. I did not have any idea at all.
I am honest.
PROSECUTOR:
Okay,
and now in December when you were warned not to make contact with the
witnesses, you still made contact with Ms Fouche.
APPLICANT:
Yes,
you know what, like I said, on the 5th of November Fouche contacted
me. I was responding to her message because I did not
respond to her
messages. I was responding to what she said.
PROSECUTOR:
The
5th of what date? When was it?
APPLICANT:
The 5th
of November. I think it was Saturday, he contacted me and console me
one, two, three [intervenes]
PROSECUTOR:
Okay,
[intervenes]
APPLICANT:
And
then I did not, I did not entertain it.
PROSECUTOR:
Yes.
APPLICANT:
And
then because she is my subordinate, we have got good relationship
with her, and I you know I have also got a relation with
you and also
with the Chief. You know that. Then I was, I did not respond to that
message, that SMS on the 5th. Now I was, because
I was looking my
study material and she is very close to me. We have got a very good
relationship with Marlene. I wanted to look
for my study because I am
writing the exam, to assist me to give one of the employees my study
material so I am writing now in,
now, now, now in April and May.
PROSECUTOR:
Ja,
but you were told not to contact the witnesses. That you were told
clearly in court.... Ja, but we are just trying to be logical.
I can
for no reason see why you are contacting a witness, and now you are
saying you are asking for the study material. She said,
she gave an
affidavit saying that you threatened her. You told her you hope that
her house is ensured
(sic)
because you are going to burn it
down, and you also mentioned her sisters.
APPLICANT:
No. No,
not at all. I will not, I will never do that. You know me. How can I
do that? I used to work with you. We have got good
relations with
you. The entire court here, we can call them. Even next door Telkom
building you can call them. Ask about me. Ask
the Prosecutor here
about how I, how I conduct myself, my relations with them.
PROSECUTOR:
Sir,
we are not leading character witness about what you are wrong.... It
was said clearly that you should not make contact with
witnesses, and
you made contact subsequent to that. That is the problem.
APPLICANT:
When I
respond to you, I said I did not know the witnesses, who are the
witnesses. I was honest with you, like now I am honest
with you. I
really do not know who and who is the witnesses. do not know. I do
not know whether you are standing there you are
the witness. I really
do not know."
[36] With
regard to the appellant's contact with Ms Marlene Coetzee, he
explained,
inter alia,
as follows:
"APPLICANT:
All along I heard now, recently now it is Lemmer Ludick who opened
the case, and I was not surprised on the 5th when Marlene sent
me a
SMS saying one, two, three. And this year when I wanted to respond to
that now, it is something which is making a big noise
now."
[37] At
that stage of the proceedings the presiding Magistrate interrupted
and started
confronting the appellant about the fact that he was
warned not to make contact with the witnesses and that he did not ask
the
Court who the witnesses are and even put it to the appellant that
he did not ask the Court about the identity of the witnesses because
he knew the witnesses. The responses which came forth from the
appellant during this questioning by the presiding Magistrate, were,
inter alia,
the following:
"It is fine; I
understand My Lady. Like I said, my colleague Marlene Fouche she
contact me in the first place and now I was
responding to that one.
…
I did not know who is the
witnesses. To be honest, like now, I do not really know.
…
The Court did not tell me
any, who is the name of the witnesses.
…
At all. Like you ask me
now, did the Court explain to you, tell you who is the witnesses, I
said no, I do not know the witnesses
at all.
…
Yes, but I do not know
who are the witnesses...
…
I know, I do not know
because Marlene sent me a SMS. I thought she is not any witness,
because she is my subordinate, and I work
with her most of the time.
I do not, I did not think she is a witness, to be honest with you. I
really do not know, heavenly Father
knows that."
[38] Immediately
after the aforesaid evidence of the appellant, the Presiding
Magistrate
indicated that she needs to clarify something. She then
confronted the appellant with alleged differences in his evidence as
to
why he blocked Ms Marlene Fouche's number on his cell phone.
[39]
Thereafter the cross-examination of the appellant by the prosecutor
was concluded
with the following:
"PROSECUTOR:
So Mr Ntsasa, the long and the short, you contravened the bail
conditions and on the 13th March Marlene said you called her. The
investigating officer confirmed the call that she received was from
you.
[It
was not a bail condition that the appellant
was not to make contact with employees of the DPP's office; although
he was indeed later
warned not to make contact with the witnesses.]
She said that she was concerned. You threatened her and that was
what subsequently
led to the J50. That is why you are arrested today. So you broke the
bail conditions.
APPLICANT:
Like I
said, I did call her to request my study material. I did not use any
vulgar language to threaten her or whatsoever what
is being stated
there. I do not have any idea of that.
PROSECUTOR:
So you
had contact with a witness.
APPLICANT:
Who is
the witness, is it Marlene?
PROSECUTOR:
Ja.
APPLICANT:
Like I,
I hear you say it is a witness, Marlene, like she stated now-now, she
is a witness, but I said I did not know she is a
witness."
[40] After
the conclusion of the aforesaid cross-examination the presiding
Magistrate
again deemed it necessary to question the appellant, this
time about what motive Ms Marlene Fouche could have had to falsely
implicate
the appellant regarding the alleged threats and the
improbability thereof in the circumstances. The appellant responded,
inter alia,
as follows:
"COURT:
Now
she turns around and says you threatened her.
APPLICANT:
I was
surprised and right now I am still shocked now to hear that. To hear
that, I am so shocked now to hear that. I want to be
honest with you.
…
You can say so. You can
say so, but I do not know why, what is the motive behind. I do not
know what is the motive behind.
…
Because I do not know
what she thinks. I do not know. I am not in the office now. I do not
know what do they say about me. I really
do not know."
[41] The
following evidence was presented during re-examination:
"Mr MASUNYANE:
Mr Ntsasa, was Marlene, Ms Fouche the only person that you blocked?
APPLICANT:
No, I
did block a lot of people on my phones. My colleagues on the phone,
or yes.
MR MASUNYANE:
So
is it correct that the only reason that you blocked Marlene and other
colleagues is because of the irritating questions that
they were
posing on you?
APPLICANT:
Yes,
yes.
MR MASUNYANE:
All
right. So Mr Ntsasa, tell me, did you threaten Ms Marlene, Mrs
Fouche, on the 13th of March when you called her?
APPLICANT:
No, no,
no, no. She is my darling. I will not threaten her at all.
MR MASUNYANE:
All
right, so Mr Ntsasa, [intervenes]
APPLICANT:
Even
the Prosecutor, I will not threaten her.
MR MASUNYANE:
So
Mr Ntsasa, tell me what might be the reason for Ms Marlene as even
the magistrate asked, what might be the reason that Ms Marlene
will
not (sic) turn her back on you?
APPLICANT:
Like I
said, I, I do not know what is in her mind. I really do not know
what, what is the story at the office, what, what do they
say about
me? I really do not know.
MR MASUNYANE:
So
okay, so is it correct that if it happens that the honourable Court
finds you guilty on the trial, not on this hearing, that
Ms Marlene
will be the next person for your concession, is that correct?
APPLICANT:
Yes, yes.
MR MASUNYANE:
No
further questions, Your Worship."
Arguments
and submissions on behalf of the parties:
[42] Mr
Dlamini, who appeared on behalf of the appellant, submitted that the
Court
a quo
erred by finding that the State proved that the
appellant made contact with Ms Fouche whilst knowing that she was a
witness and
that he threatened her and thus also erred in finding
that
"the safety of Ms Fouche is now involved in this whole
bail application".
[43] Mr
Dlamini submitted that it is evident that the appellant did not know
who
the witnesses are and more specifically, he did not know that Mr
Ludick and Ms Fouche are state witnesses. It was the State's duty
to
have informed the appellant of the identity of the state witnesses,
which it failed to do. Ms Fouche in any event made contact
with the
appellant before he did.
[44] With
regard to the alleged threats directed at Ms Fouche, Mr Dlamini
pointed
out that no affidavit of Ms Fouche confirming the alleged
threats, was presented in evidence by the investigating officer. Mr
Dlamini
further contended that if the appellant had in fact
threatened Ms Fouche in the manner alleged, one would have expected
that she
would have opened a case of intimidation against the
appellant, which she failed to do.
[45] Mr
Dlamini further pointed out that from page 47 up to page 57 of the
record
of the proceedings, with the exclusion of one question by the
prosecutor, the presiding Magistrate was the one who was
interrogating
the appellant. Mr Dlamini submitted that the conduct of
the presiding Magistrate in this regard was improper.
[46] Mr
Dlamini submitted that the order of the presiding Magistrate granting
the
application and withdrawing the bail of the appellant was
consequently wrong and is to be set aside.
[47] Mr
Harrington, who appeared on behalf of the state, sternly defended and
supported
the findings and order of the presiding Magistrate,
imploring me not to uphold the appeal.
[48] Mr
Harrington submitted that it is evident from the record of the
proceedings
of 9 December 2022 that it is to be accepted as a fact
that the appellant was warned in general by the Magistrate who was
presiding
at the time, that he was not to have contact with the
"witnesses and the complainants".
Since the charges
against the appellant emanated from his workplace (being the Fleet
Department at the Offices of the Director of
Public Prosecutions,
Bloemfontein), which the appellant on his own version knew, it is
logical that employees from his workplace
would be state witnesses.
Mr Harrington consequently submitted that it is highly improbable
that the appellant would not have known
that Mr Ludick, who was his
supervisor, and Ms Fouche, who was his immediate subordinate (he was
her supervisor) would be state
witnesses. In this regard Mr
Harrington emphasised that I should consider the said submission
against the background of the appellant
being an educated person who
was in a management position.
[49] It
was further the contention of Mr Harrington that considering the good
relationship
which existed between the appellant and Ms Fouche, it is
improbable that Ms Fouche would falsely implicate the appellant.
[50] Mr
Harrington also submitted that if it is to be accepted that the
appellant
did indeed threaten Ms Fouche, then logic dictates that the
appellant must have known that Ms Fouche is a state witness, moreover
one of the state witnesses who probably would be requested to compile
available evidence against the appellant from their offices,
otherwise the appellant would not have had any reason to threaten Ms
Fouche.
[51] Mr
Harrington submitted that the appellant's conduct during his arrest
on 13
March 2023 was violent and obstructive, which is a further
indication of his guilt pertaining to his conduct in relation to Ms
Fouche.
[52] It
was Mr Harrington's contention that the fact that the appellant left
Bloemfontein
without informing the investigating officer in direct
breach of one of his bail conditions, shows his inclination not to
adhere
to court orders and warnings issued by a Magistrate.
[53] Mr
Harrington submitted that it is consequently evident that the order
of the
presiding Magistrate was not wrong and therefore cannot
and should not be interfered with by means of this appeal.
Judgment
of the court
a
quo:
[54] The
court a
quo
correctly interpreted section 68 of the Act that
it is not a prerequisite that there had to be a bail condition
prohibiting contact
with state witnesses before bail can be cancelled
when such contact occurs.
[55] It
is common cause that the bail conditions which were conveyed to the
appellant
on 4 November 2022 by the Magistrate who presided at the
time, were the following:
1. The
appellant may not enter the offices of the OPP.
2. The
appellant may not enter Puma Garage, Glen Road, Hilton and may not
contact
the manager or the employees.
3. The
appellant may not leave the Bloemfontein district without the consent
of the investigating officer, Warrant Officer Pule.
[56] Although
there was no bail condition in respect of contact with state
witnesses,
it is common cause that Magistrate who presided on 9
December 2022 warned the appellant not to have
"any contact
with the witnesses or complainants, it
says,
WhatsApp,
Twitter,
Message,
Telegram, meaning all the social medias
of
the
world.
...
Not
to
have any
contact whatsoever
with the witnesses in this matter.".
[57] The
court a
quo
stated in its judgment that the accused received a
telephone call from Ms Fouche, but that he refused to talk to her.
This is not
completely correct. The evidence of the appellant was
that on 5 November 2022 Ms Fouche sent him a WhatsApp message, but
that he
did not respond to it.
[58] The
court a
quo
further stated as follows in its judgment, at p.
65, lines 8 - 13:
"He refused to talk
to her and in his own words he said to the court the reason why he
did not want to communicate with her
was not because people were
being irritating and asking him a lot of questions, but because he
did not know if she is a witness
or not so that is why he blocked
her.
From this it is quite
clear that the accused was fully aware that he may not contact
witnesses, being it threatening them, intimidating
them or making
contact with them. That is why he blocked her according to him, he
was uncertain if she was a witness or not. It
is a possibility that
she was a witness."
[59] The
aforesaid statement that
"in his own words he said to the
court the reason why he did not want to communicate with her
was
not because people were being irritating and asking him
a
lot
of questions, but because he did not know if she
is a
witness
or not
so
that
is
why he blocked her''
is not a
correct reflection of the appellant's evidence.
[60] It
is correct that the appellant initially testified that he blocked Ms
Fouche
when he received her WhatsApp because he
"did not know
which one
is a
witness, which one
is
not".
At
a later stage, when the prosecutor put it to the appellant that
"obviously
the people of the National Prosecuting
Authority
that worked in your office would be witnesses",
the
appellant responded as follows:
"Yes, like I said, I
do not know whether Marlene is a witness, because she is my
colleague. She sent me a SMS."
[61] It
is very important to note that shortly after the aforesaid answers,
still
during cross-examination by the prosecutor, the record reflects
the following questions and answers, which I also cited earlier
in
the judgment:
"PROSECUTOR:
Okay, and now in December when you were warned not to make contact
with the witnesses, you still made contact with Ms Fouche.
APPLICANT:
Yes,
you know what, like I said, on the 5th of November Fouche contacted
me. I was responding to her message because I did not
respond to her
messages. I was responding to what she said.
PROSECUTOR:
The
5th of what date? When was it?
APPLICANT:
The 5th
of November. I think it was Saturday
. [s]he contacted me and
console me one, two, three.
[intervenes]
PROSECUTOR:
Okay,
[intervenes]
APPLICANT:
And
then I did not, I did not entertain it."
(My emphasis)
[62] The
cross-examination by the prosecutor continued and the appellant
persisted with
his version that he did not know who the state
witnesses are. As indicated earlier, at that stage of the proceedings
the presiding
Magistrate intervened and started questioning the
appellant. I unfortunately deem it essential to quote a substantial
part of the
record as to the questioning by the presiding Magistrate
that followed thereafter, from page 51 to 55 of the record:
"COURT:
Okay.
Please excuse me for interrupting, but I have to clarify it as it
comes.
PROSECUTOR:
Thank
you, Your Worship, no problem.
COURT:
You now say
you did not know that Marlene is a witness.
APPLICANT:
Correct.
COURT:
Right. Now
I am going to go back to your evidence today when you testified.
APPLICANT:
Yes.
COURT:
You said to
the Court, when Marlene contacted you on. [intervenes]
APPLICANT:
The
5
th
.
COURT:
On the 5th,
what did you do?
APPLICANT:
Because
I was still in shock, remember [intervenes]
COURT:
No, no, no.
[intervenes]
APPLICANT:
I did
not respond. [intervenes]
COURT:
What did
you do?
APPLICANT:
I did
not respond on that time, to be honest.
COURT:
You blocked
her.
APPLICANT:
Come
again?
COURT:
You blocked
her.
APPLICANT:
Yes.
COURT:
Why did you
block her?
APPLICANT:
Because
I, I did not want, everybody was phoning me on that time, what, why
are you arrested, what is going on, and they ask me
a lot of
questions about. [intervenes]
COURT:
No, no, no.
[intervenes]
APPLICANT:
The
court.
COURT:
Marlene.
APPLICANT:
Yes.
COURT:
Why did you
block her? You told me in court today. [intervenes]
APPLICANT:
Yes.
COURT:
I blocked
her.
APPLICANT:
Yes.
COURT:
Because I
was not sure whether she is a witness or not,
and I may not
interfere with the witnesses.
[The underlined part was never
the evidence of the appellant.]
That is why I blocked her. Do you
understand the implication of what you said? Marlene contacted me.
[intervenes]
APPLICANT:
I, I
did not only blocked Marlene, I blocked. [intervenes]
COURT:
I blocked
her because I did not know. [intervenes]
APPLICANT:
I
blocked several, several employees.
COURT:
No. Just
give me a moment to finish my sentence. Your evidence today in court
is when Marlene contacted you, you did not want to
talk to her, you
blocked her because you knew, you did not know if she is a witness or
not, so you rather blocked her. So in your
mind obviously you knew
this is a possible witness, because we are working together. She is
my subordinate. [intervenes]
APPLICANT:
You
know what happened, she said to me... [intervenes]
COURT:
That I
cannot speak to her.
APPLICANT: She said to
me,
"Foeitog, Jimmy, I am sorry".
COURT: No, I do not
want to know about that.
APPLICANT: Yes, I must
just for the purpose of the record intervenes
COURT:
No.
Do not avoid
... [intervenes]
APPLICANT: And then
because I did not want to hear any negative words.
Remember,
when you are stressed, you do not need to listen to the negative
words.
COURT:
Okay,
please, listen.
APPLICANT:
Yes.
COURT: Do not avoid
the issue by talking about all the other little things.
APPLICANT:
Okay.
COURT:
What I am
saying to you is, just let us concentrate on that part. Your evidence
today in court is, Marlene phoned me. I blocked
the call. I did not
want to talk to Marlene because I did not know if she is a possible
witness.
APPLICANT:
Yes.
COURT:
So in your
mind you thought, I do not want to talk to because she could be a
witness and I could be in breach of my bail conditions.
I will rather
block the call. Is that not so? That is by implication what you told
me today.
APPLICANT:
Okay.
COURT:
So you knew
she is a possible witness. [intervenes]
APPLICANT:
Never,
I [intervenes]
COURT:
She is your
subordinate.
APPLICANT:
I did
not know at all.
COURT: Why did you
block her call then?
APPLICANT:
Because I was, I can show my phone, all my colleagues at
the OPP they, a lot
it is not only Marlene.
COURT: No, no, no
[intervenes]
APPLICANT:
Even,
even [intervenes]
COURT:
Let us talk
about Marlene.
APPLICANT:
Even,
ja, even Pinkie. Marlene she is subordinate, Pinkie, she is
subordinate to Pinkie. She asked me a lot of questions, what,
what,
you see. All those things.
COURT:
Sir.
APPLICANT:
Yes.
COURT:
Forget
about Pinkie. Let us talk about Marlene.
APPLICANT:
Yes,
what about Marlene?
COURT: Why did you
block her call?
APPLICANT: I said to
you because I did not want have, I did not want to have a lot of
noise because I had a lot of noise from my
colleague from OPP, sorry
Jimmy, what happened. I, I blocked most of them.
COURT:
'Marlene
Fouche sent me a WhatsApp. I did not respond to that, I blocked it
because I did not know who is a witness and who is
not a witness.'
That is what you said to me in court. It is not something that I am
sucking out of my thumb. I am going to leave
it at that, but please,
if we are asking you questions, just stick to the question that was
asked and do not come and elaborate
on stuff that is really
irrelevant.
APPLICANT:
Okay,
it is fine.
COURT:
Thank you,
please proceed."
[63] Returning
to the court a quo's statement in its judgment cited in paragraph 59
above, it is, in my view, evident that the appellant definitely did
not state that
"the reason why he did not want to communicate
with her was
not
because people were being
irritating and asking him
a
lot of questions, but because he
did not know if she is
a
witness or not so that is why he
blocked her".
He clearly advanced both reasons for the fact
that he did not respond to the message of Ms Fouche - not the one to
the exclusion
of the other. Furthermore, the reason he advanced why
he did not respond to Ms Fouche's message and that he blocked her
number
and also the numbers of many other colleagues, being that
their sympathy and questions were emotionally too much for him to
handle,
ties in with his earlier evidence that the message from Ms
Fouche was to
"console"
him. It was
consequently not a matter of him fabricating same out of the blue
during the cross-examination by the presiding Magistrate.
[64] With
regard to the aforesaid questioning of the appellant by the presiding
Magistrate,
as well as the subsequent questioning by the Magistrate,
referred to and cited in paragraph 40 above, I unfortunately have to
refer
to and deal with the judgment of
Gade v S
[2007] 3 All SA 43
(NC), which judgment was also referred to in
paragraph [10] above, although for a different reason. The said
matter was an appeal
against the refusal of bail by the Magistrate's
Court and therefore principles similar to the matter
in casu
were
applicable. The following principles were stated and applied at
paragraphs 18 and further of the said judgment:
"Questioning by
the court
15. The
general principle about questioning a witness by the court is noble
and sound.
The court has the right to question any witness at any
stage of the proceedings the main purpose being to clarify and clear
up
points which are still obscure.
16. The
record indicated that the appellant's wife is employed by Algoa Bus
Company and
that she is a bus driver. This was indicated already in
the first application for bail when the appellant's affidavit was
read
into the record. .. . There is nothing obscure about where the
appellant's wife works and in what capacity she works.
The manner
of asking the questions depicted on page 100 lines 24-25 and pages
101-102 of the record clearly reflects cross-examination
by the
court
.
17. In
Hamman v Moolman
1968 (4) SA 340
(A) at 344O-G the learned
Judge of Appeal (Wessels, JA) expressed regret that, the court
a
quo
did not at all times conform to the generally accepted norm.
The following is stated:
'He sought from time
to time to expedite the hearing of the
matter by
virtually taking over from Counsel both the examination and
cross-examination of witnesses. In doing so, it appears that
he may
at times have overlooked the Judge's usual role in our system of
civil trial procedure, and to have associated himself too
closely
with the conduct of the case. thereby denying himself the full
advantage usually enjoyed by the trial judge who, as the
person
holding the scale between the contending parties, is able to
determine objectively and dispassionately, from his position
of
relative detachment, the way the balance tilts.
The limits which
a judge should observe in intervening in the conduct of proceedings
over which he presides were dealt with by this
court in
R v
Roopsingh
1956 (4) SA 509
(AD).'
18. Lord
Green (MR) had the following to say on the subject:
'The judge who himself
conducts the examination ... descends
into the arena
and is liable to have his vision clouded by the dust of conflict.
Unconsciously he deprives himself of the advantage
of calm and
dispassionate observation.'
Vide:
Yuil
v Yuil
[1945] 1 All ER 183
(CA) at 189.
19.
The
sentiments expressed in the above-cited cases remain salutary and
state in no uncertain terms the limits of a presiding officer
when
questioning a witness to clarify points which are still obscure in
his or her evidence.
20.
…
21. Although
bail application proceedings are
sui generis
and inquisitorial
in nature
(Vide: Elfish v Prokureur-Generaal (WAA)
1994 (2)
SACR 579
(T) at 596e [also reported at
1994 (5) BCLR 1
(T) –
Ed]) they remain court proceedings and
unless the law stipulates
otherwise, the time-tested procedures and practice that maintain
fairness and justness of procedures should
be adhered to.
22.
From
the record it is clear that the Magistrate did enter the arena. This
manner of conducting the proceedings is irregular because
it
compromises the impartiality of the presiding officer. …
…
30…
(4)
That the magistrate did enter the arena to the prejudice of the
appellant.
…
32. ... I now pronounce
that the decision of the Magistrate is wrong in refusing to admit the
appellant to bail and that decision
is accordingly set aside."
(My emphasis)
[65] The
Gade
-judgment was followed and applied in the judgment
of
S
v
Phiri
[2007] ZAGPHC 337
;
2008 (2) SACR 21
(T) at 24 C - 25 B:
"Questioning by
the court
In
S v Gade
[2007]
3 All SA 43
(NC) at 46 para 15 the following is stated: 'The general
principle about questioning a witness by the court is noble and
sound.
The court has the right to question any witness at any stage
of the proceedings the main purpose being to clarify and clear up
points which are still obscure.'
Taking over any
examination or cross-examination
of a witness by the
court
is not to conform to the generally accepted
norms....
In
S v Schietekat
1998
(2) SACR 707
(C)
(1999 (2) BCLR 240)
at 716e the learned judge
said the following in regard to the conduct of the presiding officer:
'A judicial officer
wields enormous power. Gowned, sitting on high and surrounded by the
trappings of his office he cuts an imposing
and terrifying figure.
Consequently, he must constantly ensure that every courtesy is
extended to those who appear before him. To stand accused of a crime
is a frightening ordeal. No person should be allowed to feel
intimidated in the orderly presentation of his case.'
In
S v Rall
1982
(1) SA 828
(A) at 831H the learned judge of appeal expressed the
following sentiments relating to the conduct of a trial:
('1) According to the
above-quoted
dictum
of Curlewis JA the Judge must ensure that
'justice is done'. It is equally important, I think, that he should
also ensure that justice
is seen to be done. After all, that is a
fundamental principle of our law and public policy.
He should
therefore so conduct the trial that his open-mindedness, his
impartiality and his fairness are manifest to all those who
are
concerned in the trial and its outcome,
especially the
accused ... '
In
S v Omar
1982
(2) SA 357
(N) at 359 the learned judge made remarks about the
conduct of the magistrate, despite the appellant having been
represented by
counsel.
"The magistrate in
his reasons in reply to criticism observes that the appellant was
represented by counsel who could have
objected had he considered the
manner of cross-examination to be unfair. This is correct, so far as
it goes. I am constrained to
remark, however, that
the fact that
the accused is represented by counsel does not absolve the presiding
officer from ensuring that he receives a fair
trial ...
"
[66] Although
the presiding Magistrate, at the time when she interrupted the
questioning
by the prosecutor, indicated that she needed to
"clarify",
her line of and manner in which she
questioned the appellant went way beyond clarification. In my view,
the presiding Magistrate
not only virtually, but literally took the
cross-examination of the appellant over from the prosecutor. During
her questioning
(cross-examination) of the appellant, the presiding
Magistrate intervened and prevented the appellant from finishing his
answers
(whilst the appellant was attempting to answer questions)
whenever his answers did not entail what she wanted to hear, namely
answers
advancing the State's case. The presiding Magistrate finished
some of the sentences of the appellant for him, by interrupting him
and putting words in his mouth, or at least attempting to do so.
[67] The
presiding Magistrate, at p. 55 of the record, lines 4 - 8, uttered
the following
remarks to the appellant:
"That is what you
said to me in court. It is not something that I am sucking out of my
thumb. I am going to leave it at that,
but please, if we are asking
you questions, just stick to the question that was asked and do not
come and elaborate on stuff that
is really irrelevant."
[68] With
all due respect, I consider the remark about not sucking the relevant
part
of the evidence from her thumb, to be an inappropriate
expression or remark unbefitting the office of Magistrate when
presiding
in a matter, especially considering that it was addressed
to an accused and the context within it was made. Adding to that the
"warning" which the presiding Magistrate directed at the
appellant
"not to come and elaborate on stuff that is really
irrelevant"
when he merely attempted to present his version
regarding highly relevant issues, which the presiding Magistrate was
preventing
him from doing. The presiding Magistrate was not only
condescending in her conduct towards the appellant, she also hampered
him
in the proper presentation of his case.
[69] Unfortunately,
the presiding Magistrate descended into the arena in an improper
and
irregular matter. As correctly pointed out by Mr Dlamini, the
interrogation of the appellant by the presiding Magistrate stretched
over 10 pages of the transcribed record.
[70] The
irregularity is exacerbated by the fact that it is the very evidence
which
the presiding Magistrate obtained from the appellant during
this process which she subsequently used as the fundamental basis for
her conclusions.
[71] The
presiding Magistrate subsequently stated the following in her
judgment,
at p. 66 of the record, lines 3 - 6:
"He then decided to
phone Ms Fouche,
the same person that he thought was a witness and
that he does not have contact with."
(My emphasis)
[72] The
aforesaid is factually incorrect. The appellant very specifically
testified that
he did not know whether she was a witness or not; he
did not testify that he thought that she
was
a witness.
Unfortunately the evidence obtained during the irregular
cross-examination of the appellant already dealt with above,
is again
raising ifs head, firstly because the non-contact with Ms Fouche is
ascribed to the finding of the presiding Magistrate
that he thought
she was a witness and secondly because the non contact is not at
all considered on the basis of his evidence,
which the presiding
Magistrate constantly interrupted, being that he did not entertain
her contact with him because he could not
cope with all the questions
and words of empathy from his colleagues, including Ms Fouche, at the
time.
[73] The
presiding Magistrate continued her judgment and stated and concluded
the
following:
"The person that he
contacted was somebody that worked with him, his subordinate, so
clearly when he was facing a charge emanating
from the office where
he was working in close relationship with this same person Fouche,
he
must have realised that she is also a state witness. It is clear from
his evidence that he knew that."
(My emphasis)
[74] I
cannot agree with the aforesaid underlined conclusions made by the
presiding
Magistrate. Throughout the proceedings the appellant was
consistent and persistent with his version that he did not know who
the
state witnesses are. I have already quoted the relevant parts of
the record in this regard. The presiding Magistrate, throughout
her
judgment and in making her findings, relied on one sentence from the
totality of the appellant's evidence, being when he said,
with
reference to Ms Fouche, that he
"blocked
her
on
that
time
because
I
did
not
know
which
one is
a
witness, which one is not
a
witness".
The presiding Magistrate clearly
considered this sentence in isolation when she concluded that it
means that
"he must have realised that she is also
a
state witness"
and that
"it
is clear from his evidence that he knew that”.
[75] In
my view, even when considered in isolation, that is not the only
meaning
that can be attached to it. It may just as well be
interpreted to merely mean that he did not know who the state
witnesses are,
nothing more and nothing less. In fact, when this
sentence is considered in the context of the totality of his
evidence, like it
should be, the last mentioned interpretation is
wholly in line with the totality of the appellant's evidence, being:
1. That
he did not know who the state witnesses are; and
2. The
reason why he did not respond to the message of Ms Fouche and blocked
her number at the
time was because he was unable to deal with all the
questions and empathy from his fellow-employees.
[76] Whilst
being on the issue of the appellant's alleged reason why he did not
entertain
the message from Ms Fouche and blocked her number at the
time, the appellant specifically in his evidence in chief offered
access
to his phone when he testified
"Marlene Fouche
on the 5
th
of
November
she
sent
me
a
Whats
App,
here it is exhibit on my phone ...".
During the interrogation by the presiding Magistrate of the
appellant when he attempted to explain why he blocked the number of
Ms Fouche, whilst the presiding Magistrate continuously interrupted
him, he explained that the message from Ms Fouche read
"Foeitog
Jimmy, I
am sorry". When he was a bit later again asked why
he blocked the
"call”
of Ms Fouche, the
appellant responded as follows:
"Because I was, I
can show my phone, all my colleagues at the OPP they, a lot, it is
not only Marlene."
Despite
the aforesaid evidence by the appellant, nobody took his phone to
ascertain, to his advantage or his detriment, whether
the contents of
the phone confirmed or contradicted his aforesaid evidence. I am duly
aware that the appellant was legally represented
and that his legal
representative should have, at least during the appellant's evidence
in chief, requested the court and the State
to take a look at the
contents of the appellant's phone or the message should have been
printed and presented with the phone to
the court and the State,
where after the printed version of the message could at least have
been handed in as an exhibit. However,
in view of the failure of the
appellant's legal representative to have done so, it was in the
interest of justice that the presiding
Magistrate should have
requested to see the contents of the appellant's phone, which she
failed to do. Like it was stated in the
Phiri
-judgment
,
already quoted above,
"the fact that the accused is
represented by counsel does not absolve the presiding officer from
ensuring that he receives
a
fair trial
..."
[77] In
her judgment the presiding Magistrate referred to the evidence of the
appellant
that he contacted Ms Fouche in order to obtain his books
for studying purposes, since they have always been on good terms with
each other and they had a good relationship. The appellant only
wanted his books. The Presiding magistrate further stated as follows:
"She turns around
and says he phoned her and threatened her that he is going to burn
her house down, so she must make sure
that the insurance are in
order, and also involved his sister in these threats."
Then
followed the paragraph already cited earlier which reflects the
conclusion that the appellant must have realized that Ms Fouche
is a
state witness and that it is clear from his evidence that he knew
that. The following paragraph then follows:
"I am indeed
satisfied that the accused made contact with a witness; that he
actually threatened her, because I can find no
reason why she would
fabricate these threats. Therefore there are sufficient to (sic)
withdraw his bail and the reason for withdrawing
the bail is not only
the fact that he contacted her and threatened her, but because he is
now threatening that he will damage her
property and now he is a
risk, and the safety of the witness is now involved in this whole
bail application."
[78] The
presiding Magistrate made the aforesaid conclusion without having
once referred
to the fact that the onus of proof is on the State
and/or that such an onus is to be discharged on a balance of
probabilities.
[79] The
only reason which the presiding Magistrate relied upon in support of
the
aforesaid conclusion was that she can find no reason why Ms
Fouche would fabricate the version with regard to the threats. This
is despite the fact the fact and principle that it is not necessary
for an accused person to show a motive as to why a witness
would
present false evidence against him/her. Be that as it may, the
presiding Magistrate herself confronted the appellant about
a
possible motive for Ms Fouche to have falsely implicated him, but
when a possible motive was eventually presented during
re-examination,
namely that she was next in line for the appellant's
position at work, the presiding Magistrate apparently chose to ignore
it in
her judgment.
[80] In
my view the presiding Magistrate also completely failed to consider
the flipside
of the aforesaid argument she raised, being the
improbability of the appellant threatening the very person with whom
he had a very
good relationship at work and who, if he knew she was
to be a state witness, would rather have maintained their good
relationship.
[81] It
is trite that since bail proceedings are regarded as neither criminal
nor
civil proceedings, the rules of evidence are not strictly adhered
to and consequently hearsay evidence is generally admissible at
bail
proceedings. See
S v
Vanta
2000 (1) SACR 237
(Tk). However, in my view, it is essential to
keep in mind why the aforesaid approach is being followed. In
Vanta
at 246 D - Ethe following
dicta
are stated:
"In an unreported
decision of this Court in
Rozani and Others v S
(case No
A52/99) Jaffa AJ dealt with the admissibility of hearsay evidence in
bail proceedings and stated at p 19 to 20 of the judgment
that:
'In bail applications
the court is not called upon to weigh proven facts
but
to speculate on what could happen in future.
Secondly, bail
applications are neither civil nor criminal proceedings ... "'
(My emphasis)
[82] Contrary
to the aforesaid, it is crucial to have regard to the fact that in an
application in terms of subsection 68(1)
"information"
relating to the factors enumerated in the subsection must be
given
"on oath".
(My emphasis)
Furthermore, in the judgment of
Oehl
v Additional
Magistrate, Bellville
2005 (2) SACR 14
(C) at 19 I - 20 C the following principles are stated in relation to
section 68 of the Act:
"It Is self-evident
that where the State is of the opinion that any of the factors listed
in s 68 is present, it must, if it
proceeds in terms of s 68(1),
approach the court before which the accused faces the criminal charge
in respect of which he has
been granted bail and, if the court is
satisfied with the evidence provided it could make any order, which
could include placing
additional conditions on the bail already
granted or, in an extreme case, cancelling the bail and ordering the
accused to remain
committed in custody pending the finalisation of
his criminal hearing.
Does s 68(1), however,
require that a trial process be undertaken where
witnesses
provide the information and are liable to be cross-examined and the
accused is present in court? This must be so. The
possible
consequences of an application in terms of this section are extremely
severe: If the accused's bail is cancelled, the
accused is not able
to apply for bail and consequently will not be released until his
criminal trial is finalised. In an application
in terms of s 68(1)
the State must satisfy the court on a balance of probabilities that
further restrictions are placed upon the
accused who has been granted
bail, or his bail be cancelled and he or she placed in custody. For
the court to be satisfied that
the State has discharged the
onus
it bears, a full and proper hearing has to take place."
(My emphasis)
[83] Therefore,
contrary to an application for bail, in an application in terms of
section 68 of the Act, a court is not speculating about what could
happen in future, but needs to deal with information and facts
under
oath about what has indeed happened by means of which the State has
to discharge its onus on a balance of probabilities.
[84] With
the aforesaid in mind, I now return to the "evidence" with
regard
to the alleged threats:
1. The
investigating officer presented the allegations regarding the alleged
threats in a manner
which out and out constituted hearsay evidence.
2. No
reason was advanced as to why Ms Fouche was not also called as a
witness to present evidence.
3. The
investigating officer testified that he obtained a statement from Ms
Fouche with regard
to the alleged threats. Despite this evidence, he
did not even attempt to place that statement before court by means of
and as
part of his evidence.
4. A
proper or
verbatim
version of the alleged threats was not even
presented to court. With regard to the sisters of Ms Fouche, the
investigating officer
only testified that
"the statement was
(furthermore) talking about the sisters of the witness".
No evidence was even presented as to whether the sisters of Ms
Fouche lived with Ms Fouche in the said house or in which way they
were allegedly threatened.
Conclusions:
[85] In
my view the State failed in discharging its required onus on a
balance of
probabilities.
[86] In
view of the totality of the principles, facts, circumstances and my
findings
dealt with above, I am convinced that the order of the court
a
quo
cancelling the bail of the accused, is wrong and stands
to be set aside.
[87] The
bail of the accused is to be re-instated on the same terms and
conditions
as when it was granted on 4 November 2022. However, in
order to clarify the conditions of the appellant's bail and his
general
obligations whilst being on bail, I deem it appropriate that
further clear and unambiguous bail conditions are to be added to the
present conditions.
[88] For
the aforesaid reasons I made the order already cited at the beginning
of the judgment.
General
observation:
[89] This
matter is a typical example of the reasons why bail conditions and
other similar
warnings issued by Court should be clear, unambiguous,
properly formulated and also properly recorded. The proceedings in
this
matter were riddled with incorrect references to alleged bail
conditions which were in fact not bail conditions and references to
imposed bail conditions of which the contents were incorrectly stated
during questioning and cross-examination. The State has a
duty to
give due and proper consideration to required bail conditions and to
request same to be imposed.
C.VAN
ZYL, J
On
behalf of the appellant:
Adv.
F Dlamini
Instructed
by:
Mhlokonya
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
J Harrington
Instructed
by:
Office:
Director of Public Prosecutions
.
BLOEMFONTEIN