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[2023] ZAFSHC 252
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Lipholo and Others v S (A78/2023; A96/2023) [2023] ZAFSHC 252 (5 July 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: A78/2023
Case Number: A96/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
TEBOHO
JAMES LIPHOLO
1
st
Appellant
SENOHE
ISHMAEL MATSOARA
2
nd
Appellant
TIEHO
FRANCE MAKHOTSA
3
rd
Appellant
and
THE
STATE
Respondent
JUDGMENT
BY
:
MHLAMBI
J,
HEARD
ON:
30 June 2023
DELIEVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
hand-down is deemed to have been on 05 July 2023 at 14h15.
[1]
This is an appeal against the learned magistrate’s
refusal to grant an order that the appellants be released
on bail.
Section 65(4) of the Criminal Procedure Act, (the CPA),
[1]
provides that
the court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such court
or
judge is satisfied that the decision was wrong, in which event the
court or judge shall give the decision which in its or his
opinion
the lower court should have given.
[2] The
application was argued in the court a quo on the basis of affidavits
which were filed by the appellants
while the state presented the oral
evidence of Lieutenant-Colonel Flyman on whose evidence the state
relied to oppose the granting
of bail and argued in that court that
such opposition was based on the provisions of section 60 (4)(b),
(c), (d) and (e) of the
CPA. The whole sub-section reads as follows:
“
The
interests of justice do not permit the release from detention of an
accused where one or more of the following grounds are
established:
(a)
Where
there is the likelihood that the accused, if he or she were released
on bail, will endanger the safety of
the public, any person against
whom the offence in question was allegedly committed, or any other
particular person or will commit
a Schedule 1 offence;
(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
(c)
where
there is the likelihood that the accused, if he or she were released
on bail, will attempt to influence
or intimidate witnesses or to
conceal or destroy evidence; 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; or
(e)
where in exceptional
circumstances there is the likelihood that the release of the accused
will disturb the public order or undermine the public peace
or
security
.”
[3] I
pause to mention that at the commencement of the proceedings in this
court, the state launched an unsuccessful
application for the
postponement of the proceedings to the Wednesday of the following
week to enable Advocate Bester, who was off
sick having undergone an
operation in both eyes, to attend to the argument of the application
on behalf of the state. The application
was opposed by both the legal
representatives of appellants 1, 2 and 3, Messrs Van Wyk and Moruri.
[4] The
appellants filed two separate appeals, namely, T Lipholo v The State,
case number A78/2023 and SI Matsoara
and TF Makhotsa v The State,
case number A96/2023. Mr Roothman, on behalf of the state, argued
that Mr Strauss, who was present
in court and who ultimately argued
the application, was prepared to argue the one appeal but not fully
prepared to do so in the
second one. The state opposed both appeals
and contended that it would suffer prejudice if a postponement were
not granted. Mr
Moruri submitted that there was no guarantee that the
application would be argued on the day of the postponement. Advocate
Bester,
he contended, did not argue the case in the magistrate’s
court and a postponement was more prejudicial to the appellants who
were in custody.
[5]
Both state advocates in court are seasoned prosecutors. All the
parties agreed that bail proceedings were
urgent in nature. It was
then agreed that the cases would be consolidated and argued
simultaneously. The first appellant was referred
to as the second
applicant while appellants 2 and 3 were referred to as applicants 1
and 4 in the court
a quo.
[6] The
first appellant stated in his affidavit that he is 45 years old,
married with 7 children who are between
the ages of 2 and 24 years.
His wife is unemployed and they have resided at 5[…] C[…]
M[…], Bloemfontein,
for the past 13 years. He has an
alternative address at Vanstadenrus, near Wepener, where he can move
to, if necessary, pending
the finalisation of the case as the house
belongs to a family member. He has a valid South African identity
document but not a
passport. He is currently unemployed and was,
until his arrest, employed by Integriton Security where he earned R
14 500.00
per month.
[7] He
knows the charges preferred against him and intends to plead not
guilty thereto. He has been in custody
since 11 April 2023. He has at
all times during his arrest and the investigation of the case never
tried to run away or hide from
the police. Instead, he handed himself
to the police after he received a call to meet the police at the
Mimosa Mall in Bloemfontein.
He will not interfere with any evidence
nor attempt to influence any of the witnesses on being released on
bail. He had no intention
of interfering with the investigation and
the state witness are unknown to him. He has no resentment towards
any person involved
in this matter and has no wish to harm any
witness that may testify against him. There is no clear indication of
how long the investigation
may take and the possible period of his
stay in custody. His family may assist him to pay bail in the amount
of R 5 000.00 should
the court grant him bail.
[8] The
second appellant stated in his affidavit that he is 38 years old, his
permanent residence is at 1[…]
F[…] K[…] street,
Phase […], Bloemfontein and has been resident at Bloemfontein
for the past 12 years. His
deep-rooted and strong community and
family ties make it improbable not to attend his trial and gives an
irrevocable undertaking
to attend his trial including the preliminary
hearings. He lives with his life partner and three children aged 15,
13 and 7. He
provides for his father, a pensioner, and his
15-year-old brother.
[9] He is a
South African citizen and a passport holder which he surrendered to
the police on his arrest. He has no
intention to apply for another
passport before the finalisation of the criminal case against him. He
voluntarily handed over his
cell phone together with its password to
the police as a sign of his intention to fully cooperate with the
police investigations.
He has no previous criminal convictions. He
anticipated his arrest when false media reports insinuated that he
purchased a motor
vehicle from proceeds he received from aiding a
prison escape from the Mangaung Correctional Centre where after he
was dismissed.
[10] His dismissal had
nothing to do with the escape but related to a contravention of
certain provisions of his former employer.
Despite the imminent
arrest according to the media reports, he never fled and was arrested
at his residence. The identity of the
state witnesses is unknown to
him. Should their identities be revealed to him, he will not contact
them. He never gave false information
to the police and has always
given his full cooperation. His release on bail will neither
jeopardise his safety nor the safety
and security of the members of
the public. His continued incarceration makes it difficult for him to
earn an income and finalise
his Unemployment Insurance Fund claim. He
is engaged in a labour dispute with his former employer and the
dispute is scheduled
to go on arbitration.
[11] He is prepared to
comply with every bail condition that may be imposed. He can afford
to pay bail in the amount of R3000.00.
[12] The third
appellant stated that he is 51 years old, married and resides with
his family at 3[…] F[…] S[…],
Bloemfontein. He
has two children aged 12 and 19. He has been resident in Bloemfontein
for the past 22 years. He is a South African
citizen and a passport
holder which he gave to his attorney to surrender to the police if
needs be. He was arrested at his house
and never attempted to flee
from the police but gave his full co-operation which he tenders to do
throughout the police investigation.
[13] He was dismissed
from work and is contesting such dismissal which is unrelated to the
alleged aiding of an inmate to escape
from prison. He suspected that
he could be a suspect in the case after the second appellant was
arrested and dismissed on similar
charges as his relating to an
incident of 3 May 2022. He did not flee and does not intend to or to
avoid the due and proper administration
of justice. He does not know
the identity of the state witnesses and even if their identities were
revealed, he would not communicate
with them.
[14] He is also engaged
in a labour dispute with his former employer. At the time of his
arrest, he was in the process of claiming
his pension and
unemployment benefits. He can afford to pay bail in the amount of
R3 000.00 and undertakes to comply with
every bail condition
that may be imposed.
[15]
Lt Colonel Flyman testified that the crux of the case related to the
escape from prison of one Thabo Bester who faked
his death and bribed
his way out of prison. This case enjoyed maximum media publicity. The
reasons for his opposing bail was that
the matter was high profile
and had also enjoyed the attention of Parliament. The community
viewed the police as not doing their
work and was enraged, saying
that bail should not be granted to the accused. The second appellant
was scared for his life especially
from harm by his co-accused. The
community would frown upon the justice system and potentially take
the law into their own hands
should the accused persons be released
on bail.
[2]
[16]
The court
a
quo
found that all the parties were
ad
idem
that the bail applicants were charged with offences mentioned in
Schedule 5 and that the onus was on them to convince the court
that
the interests of justice permit their release on bail.
[3]
Having summarized the evidence, the court remarked that not much
weight should be attached to the evidence by way of statements
as it
was never subjected to cross-examination.
[4]
He found that on the evidence before him, the grounds mentioned in
section 60(4)(a) and (d)
[5]
were
not established
[6]
and went on
to state that:
“
However,
I find paragraph (b), (c) and (e) having been established.
Sub-section (4)(b) provides that the interest of justice does
not
permit the release from detention of an accused where there is the
likelihood that the accused if he/she were released on bail
will
attempt to evade his/her trial. Sub-section (6) provides that in
considering whether the grounds in (4)(b) has (sic) been
established
the Court may, where applicable, take into account the following
factors, namely amongst others;
“
(f)
the nature and gravity of the charge on which the accused is
to be tried and
(g) the
strength of the case against the accused and incentive that/she may
in consequence have to attempt to evade his/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/her.”
In this regard I will
argue that all the applicants did not deal effectively with
aforementioned factors and as a result thereof
found to be existing
and dictates against their application.”
[7]
[17]
Similarly, in considering whether the grounds in (4)(c) were
established, the court only took into account the factors in
subsections 7(a) and (d)
[8]
and
rejected the applicants’ evidence that they did not know the
state witnesses and potential state witnesses. It found
that the
grounds in (4)(e) were established as the applicants failed to deal
with the factors mentioned in subsection 8(A). It
went further and
stated that:
“
I will also
argue that the nature of the case itself, it is of its own unusual
and thus attracts the application Sub-Section (4)(e).
I have considered the provisions of Section 60(9) and
I
have weighed the personal circumstances of the applicants as against
the interest of justice. On evidence presented before me
I am
convinced that there is a prima facie case against applicant 1,2,3
and 4”
[9]
[18]
The court then went on to express its concern about the:
“
allegations as
it would appear that the offence was committed in cahoots with the
people whom a trust was bestowed and that the
offence was committed
at a place to be secured and a safe place.
It is hard, if
not possible to find the personal circumstances of the applicants
outweighing the interest of justice in this case.
I therefore find
that the interest of justice do (sic) not permit the release of the
applicant 1,2,3 and 4 on bail and such bail
is denied.”
[19]
Mr Moruri submitted that the court
a quo
misdirected itself by
finding that section 60(4)(b) of the CPA was established by the state
as Lt Colonel Flyman’s evidence
was never to the effect that
the appellants were a flight risk and the state did not advance this
ground in opposing bail. Both
second and third appellants had fixed
addresses which were confirmed by the investigating officer to whom
both had surrendered
their travel passports. The presiding magistrate
failed to advance any reasons why he found that the appellants were a
flight risk.
[20]
He contended further that there was no evidence to support the
allegations contained in subsection 60(4)(c) of the CPA that
there
was a likelihood that the appellants would attempt to influence or
intimidate witnesses were they to be released on bail.
On the
contrary, the investigating officer testified that there were no such
claims by the witnesses notwithstanding that the witnesses
had
testified against the first appellant months before the appellant was
arrested. Even if the appellants knew the identity of
the witnesses,
this could be remedied by appropriate bail conditions. Besides, the
appellants made a solemn undertaking that they
would neither
interfere with any witnesses nor tamper with the investigations in
any manner whatsoever.
[21]
Mr Moruri also contended that despite the state witness’ fear
that public violence may be sparked by the release on bail
of the
appellants, hardly 50 people showed up in court on the one day of the
bail proceedings, namely, the 11
th
of May 2023. Besides,
two of the appellants’ co-accused had been released on
R10 000.00 bail each and there was no community
uproar.
[22]
Mr Van Wyk contended that the presiding officer erred in making
sweeping statements that the appellants failed to make out
a case to
be released on bail and that he failed to evaluate and analyse the
personal circumstances of each applicant and to state
the reasons for
the refusal to release them on bail. He overlooked that the
investigation was still at its infancy stage and that
it would take a
while before the case is ready for trial seeing that arrests were
still taking place.
[23]
Mr Strauss emphasized the nature and seriousness of the crimes and
that there was a likelihood that the release of the appellants
would
disturb the public order or undermine the public peace or security.
He contended that the appeal should be dismissed on the
basis of the
grounds in section 60(4)(e) of the CPA even if the grounds in section
60(4)(b) and (c) are found to be just assumptions
and not proven.
[24]
On the analysis of the judgment of the court
a quo,
it is
evident that bail was refused on the basis that the grounds contained
in sections 60(4)(b), (c) and (e) of the Act were established.
On
closer scrutiny, it is clear that the court only paid lip service to
the provisions of sections 60(6), (7), (8A) and (9). In
the case of
the consideration of the grounds in sections 60(6) and 60(7), only
selected sections were considered by the court.
The omitted
subsections 60(6)(a) -(e) and 60(6)(i)-(j) provide that:
“
In
considering whether the ground in subsection (4) (b) has
been established, the court may, where applicable, take into
account
the following factors, namely-
(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…
(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.”
[25]
The crucial factors contained in the omitted subparagraphs were not
evaluated in the judgment to show that they were
considered in
assessing whether the ground
in
subsection 4(b) was established
.
In
determining where the interests of justice lie, the essential
exercise is to ascertain the relevant circumstances by using as
a
guide the checklist of relevant factors against the grant of bail
provided in subsection (4), as particularised in subsections
(5)
-(8A), and of those for the grant of bail provided in subsection (9).
In seeking to establish the presence of such factors
the court is to
act as proactively and inquisitorially as may be necessary. Having
established all relevant factors, the court
must weigh up the pros
and cons of bail judicially, keeping in mind the possibilities of
using appropriate conditions to minimise
possible risks.
[10]
[26]
Nowhere
in the judgment was any consideration given to the imposition of
suitable conditions as an alternative to refusing bail
altogether
.
This,
as stated in
Wilkinson
vs S,
[11]
is
a compelling reason why interference on appeal is warranted as
it constituted a failure by the court to excise a proper
discretion.
The court, in this instance, failed to take into account the
uncontested evidence of Lt Colonel Flyman that the second
and third
appellants had handed their passports over to the investigating
officer and that the evidence presented by the state
is that the
appellants were not a flight risk.
[27] Section 35 (1)(f) of
the constitution provides that everyone who is arrested for allegedly
committing an offence has a right
to be released from detention if
the interests of justice permit, subject to reasonable conditions.
The bail provisions of the
Criminal Procedure Act seek to give effect
to this constitutional imperative. In terms of section 60 (11) (b)
the court should
be satisfied on a balance of probabilities that
there has been sufficient evidence adduced by the appellant that
permit his release.
[28] Section 60(7)
provides that:
“
In
considering whether the ground in subsection (4) (c) has
been established, the court may, where applicable, take into
account
the following factors, namely-
(a)
the
fact that the accused is familiar with the identity of witnesses and
with the evidence which they may bring against him or her;
(b)
whether
the witnesses have already made statements and agreed to testify;
(c)
whether
the investigation against the accused has already been completed;
(d)
the
relationship of the accused with the various witnesses and the extent
to which they could be influenced or intimidated;
(e)
how
effective and enforceable bail conditions prohibiting communication
between the accused and witnesses are likely to be;
(f)
whether
the accused has access to evidentiary material which is to be
presented at his or her trial;
(g)
the
ease with which evidentiary material could be concealed or destroyed;
or
(h)
any
other factor which in the opinion of the court should be taken into
account.”
[29]
The court found that the ground in section 60(4)(c) was established
simply by referring to sections 60(7)(a) and (d) and concluding,
without analysis or proactively and inquisitorially seeking to
establish the presence of such factors, rejected the applicants’
evidence that they did not know the state witnesses. The court
categorised the applicants’ evidence on that point as an
argument that would defy logic and was questionable. The court
misdirected itself when it came to this conclusion and finding that
section 60(4)(c) was established without grappling with the factors
in the particular section.
[30]
The court found that the ground in section 60(4)(e) was established
based on the evidence before it and that the applicants
did not deal
with the factors contained in section 60(8) A. It stated that it
considered the provisions of section 60(9) and weighed
the personal
circumstances of the applicants as against the interests of justice
and on the evidence presented it was convinced
that there was a prima
facie case against applicants 1,2,3 and 4.
Section 60(9)
provides as follows:
“
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.”
[31]
It is clear that the court failed to take into account the factors in
this subsection and misdirected itself as to the test
applicable. On
analysing the court’s reasoning, one would think that the court
was applying a test applicable to a trial.
In
Sibiya
,
[12]
It was said that:
“
It
is important to note that ss (4)(e) expressly postulates that it is
to come into play only 'in exceptional circumstances'. This
is a
clear pointer that this unusual category of factors is to be taken
into account only in those rare cases where it is really
justified.
What is more, ss (4)(e) also expressly stipulates that a finding of
such exceptional circumstances has to be established
on a
preponderance of probabilities ('likelihood'). Lastly, once the
existence of such circumstances has been established, para
(e) must
still be weighed against the considerations enumerated in ss (9)
before a decision to refuse bail can be taken. Having
regard to these
jurisdictional prerequisites, the field of application for ss (4)(e)
and (8A) will be extremely limited. Judicial
officers will therefore
rely on this ground with great circumspection in the knowledge that
the Constitution protects the liberty
interests of all. Incorrect
application of the criteria listed in ss (4) by elevating one of them
unduly, is a matter for the criminal
justice system to remedy. It
must do so by applying s 60(4)(9) in the balanced manner prescribed
and in accord with 'the spirit,
purport and objects of the Bill of
Rights”.
[32]
The court failed to take into consideration the evidence of Lt Flyman
that during the days when the bail proceedings were held,
less than
50 members of the public attended the court for only one day. Two of
the accused have since been released on bail and
there was no public
outcry and disturbance. Furthermore, the court failed to state what
the exceptional circumstances were to prove
that the ground in this
subsection was established.
[33]
The court hearing bail application must express a balanced value
judgment taking into account the factors mentioned in
subsection (4).
The reasons for refusal of bail can usually be found in one of two
considerations, or both: (1) will the accused
abscond; and (2) will
the granting of bail lead to interference with the investigation
and/or prosecution.
[13]
In
State
v Swanepoel
[14]
:
“
Artikel
60(4) bepaal: …
Hieruit
volg dit, onteenseglik, dat die landdros nie kan bevind dat die
weiering van borgtog in die belang van geregtigheid bloot
is omdat
daar 'n
risiko
of
moontlikheid
bestaan
dat een of meer van die gevolge sal intree by vrylating nie. Die
landdros kan nie in die donker rondtas en gis en
raai om tot so 'n
bevinding te kom nie. Hy moet bevind dat dit
waarskynlik
sal
plaasvind. Indien hy nie kan bevind dat een of meer van die
gevolge
waarskynlik
sal
intree nie, kan hy nie bevind dat die aanhouding van 'n beskuldigde
in belang van geregtigheid is nie en moet die beskuldigde
in vryheid
gestel word. Dit blyk dus duidelik dat die grondliggende beginsel by
die reg insake borgtog is dat die borgtog toegestaan
behoort te word
behalwe waar dit nie in belang van geregtigheid is nie.”
[34]
A court could therefore not find that the refusal of bail is in the
interest of justice merely because there is a risk
or possibility
that one or more of the consequences mentioned in subsection (4) will
result. The court cannot grope in the dark
and speculate. A finding
on the probabilities must be made and if it cannot be found that one
or more of the consequences will
probably occur then the detention of
the accused is not in the interests of justice and they should be
released. The evidence of
both the state and the appellants show that
they are not a flight risk and in these circumstances, the court
should always try
to see whether suitable bail conditions would make
bail possible rather than refuse bail.
[15]
[34] In light of
the above, I am of the view that the appellants are not a flight
risk. I find that there is neither a likelihood
that they will
influence or intimidate witnesses nor undermine the criminal justice
system if they were to be released on bail.
The imposition of
appropriate bail conditions will, in my view limit any risk that they
may not stand their trial. The appeal should
succeed and all the
three appellants must be granted bail with appropriate conditions.
[35] Consequently,
I grant the following order:
1.
The appeal is upheld and the magistrate’s
order refusing bail is set aside.
2.
Pending the outcome of the trial, the
appellants are granted bail in the amount of R 10 000.00.
3.
The appellants’ release is subject to
the following:
3.1
The appellants must appear in the
Bloemfontein magistrate’s court on each and every date to which
their trial has been remanded
3.2
The appellants shall report to the
Kagisanong Police Station on Mondays between the hours of 06h00 in
the morning and 18h00 in the
afternoon;
3.3
The appellants shall not directly or
indirectly have contact with any state witnesses;
3.4 The appellants shall
not leave the area of Bloemfontein without the written permission of
the investigating officer;
JJ MHLAMBI, J
Counsel
for the applicant:
Mr
C Van Wyk
Instructed
by:
Legal
Aid South Africa
4
th
Floor Fedsure Building
Charlotte
Maxeke Street
Bloemfontein
Counsel
for the applicant:
Mr
K Moruri
Instructed
by:
Moruri
Attoneys Incorporated
Office
03 Anglican Cathedral
Cnr
Saltzmann & St Georges’ Street
Bloemfontein
Counsel
for the respondent:
Adv.
M Strauss
Instructed
by:
Director
of Public Prosecutions
Waterfall
Building
Bloemfontein
[1]
Criminal
Procedure Act 51/1977.
[2]
Page
187, lines 16-25 and lines 1-6 of the transcript.
[3]
Page
386 of the transcript.
[4]
Page
407 of the transcript.
[5]
Criminal
Procedure Act 51/1977.
[6]
Page 408, lines 6-8.
[7]
Pages 408 and 409.
[8]
Page 409, lines 10-25.
[9]
Page
411 of the transcript.
[10]
S
v Dlamini and Others
1999 (4) SA p680-681.
[11]
(20706/2014)
[2014] ZASCA 192
(27 November 2014)
.
[12]
Supra,
para 57.
[13]
Hiemstra’s Criminal Procedure: Albert Kruger 9-11.
[14]
1999 (1) SACR 311
(O) at page 313.
[15]
State v Branco
2002 (2) SACR 531
(W).