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2023
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[2023] ZAFSHC 312
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Mabale v S (A120/2023) [2023] ZAFSHC 312 (11 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: A120/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
REGINALD
MABALE
Appellant
and
THE
STATE
Respondent
JUDGMENT
BY
:
MHLAMBI J,
HEARD
ON:
4 August 2023.
DELIEVERED
ON:
11
August 2023
[1] The
appellant stood arraigned in the magistrate’s court on a charge
of rape where, on 23 March 2023, he was
refused bail on the two
grounds that he was a flight risk and a threat to the safety of the
complainant.
[2] The
application was opposed by the state whose resistance was ensconced
in the provisions of section 65(4) of the
Criminal Procedure Act
51/1977, (“the Act”). The state implored the court to
find that the court
a quo’s
decision not to grant the
appellant bail was not wrong and should therefore not be set aside.
[3] The
grounds of appeal are set out as follows in the notice of appeal:
“
3.1
The Honourable court misdirected itself by finding that the interests
of justice do not permit the release
of the appellant on bail.
3.2
The Honourable Court misdirected itself by finding that the appellant
is facing an extremely strong
case and that if convicted the
appellant is going to prison for life.
3.3
The Honourable Court misdirected itself by finding that there is a
great possibility or probability
that the appellant will disappear
should he be granted bail. In so doing, the court failed to consider
the following evidence of
the appellant which has not been disputed
by the respondent:
3.3.1
That the appellant went to his family to seek for their support and
encouragement.
3.3.2
After meeting his family he came back to his place and with the
support of his wife, the appellant arranged
to see the investigating
officer and to hand himself over to the investigating officer.
3.3.3
That the investigating officer was not available on the day that was
arranged with the investigating officer
for the appellant to hand
himself to the police.
3.3.4
That the appellant indeed handed himself over to the investigating
officer the following day, upon the return
of the investigating
officer.
3.4
The court misdirected itself by finding that there is a great
possibility or probability that the appellant
would threaten the
safety of the Complainant should he be admitted to bail. In doing so,
the court failed to consider the following:
3.4.1
That there is no evidence before Court that the appellant indeed
threatened the Complainant.
3.4.2
That according to the evidence of the investigating officer, the
complainant allegedly came across the appellant
three to four times
prior to the arrest of the appellant. Notwithstanding these
allegations, there is no evidence that the appellant
threatened the
complainant or spoke to her or influenced her.
3.5
The decision to deny the appellant bail is accordingly wrong and
stands to be set aside with the result
that the appellant’s
bail be reconsidered and the appellant be admitted to bail.”
[4] The appellant,
as the accused in the proceedings in the court
a quo,
had
neither previous convictions nor pending cases. As the complainant
was not under the age of 16, the offence was one referred
to in
Schedule 5 and triggered the provisions of section 60 (11) (b) of the
Act which provide that the court shall order that the
accused be
detained in custody until he is dealt with in accordance with the
law, unless the accused, having been given a reasonable
opportunity
to do so, adduces evidence which satisfies the court that the
interests of justice permit his release.
[5] The appellant
led the evidence of three witnesses: his wife, his superior, Captain
Sykes, and himself. The state relied
on the testimony of the
investigating officer, Sergeant Z Van Vellum. In brief, the
appellant’s testimony was that he had
carnal relations with the
complainant with her consent and that he was of intention to plead
not guilty to the charge in the ensuing
trial. He did receive a
telephone call that informed him that he was accused of rape and
should report himself to the police. He
regarded the call as a scam
and blocked the number.
[6] He was a
soldier at the Tempe Military base for the past 14 years and had had
no disciplinary actions against him. He
was married with 3 children,
one child having been born outside wedlock. He earned a gross salary
of R 18 000.00, leaving
him a net income of R 12 000.00.
Apart from his family, he maintained his father and sister. The two
children born of the
marriage were 16 and 11 years old. Both the
elder child and the wife had psychological problems for which they
received treatment.
[7] Months after
the incident while he was on leave, and two weeks before the bail
hearing, he was summoned to his workplace
by his superiors, who
informed him that the police were looking for him. He was scared,
afraid and saw his life changing as he
thought of his wife and
children. At work, he motivated and assisted his colleagues. He
thought his life was over and needed some
time alone. He could not
discuss this problem with his wife then. He left the place of
employment and sought the advice of his
father who stayed outside of
Bloemfontein. Later, his wife came to know of his problem.
[8] Having
consulted with his family and sister, he returned to Bloemfontein and
handed himself over to the police. His wife
was in constant
communication with the investigating officer. Captain Sykes testified
that the appellant, before the police could
arrive at the military
base, was talking to his lawyer on the telephone. He was very
distressed at the time, confused, scared and
out of his mind. They
tried to calm him. It was the first time for him to see the appellant
in that state as it was obvious that
a lot of things were going
through his mind. The appellant was not a person that runs away and
for the past 4 years, he was never
absent from work without leave.
[9] In a nutshell,
the essence of the state’s case is founded on the following
evidence of the investigating officer:
“
Miss
Van Vellum: I am opposing bail, Your Worship, against the suspect.
The victim’s safety on this matter is a priority,
Your Worship,
because I believe the suspect knows the victim well, so
should
he be released the possibility of him threatening the victim is
there
, Your Worship. Also, on
the fact that the sister was even proposing they meet up with the
family which places my victim at risk,
Your Worship, and also, I want
to place before this court that it took plus, minus four months to
find the suspect, Your Worship.
Should
he be released now, what are the guarantees of him complying?
Will he not run away again, your
Worship? And those are my reasons that I place before the court, your
Worship.”
[10] In its
judgment, the court
a quo
stated that:
“
If
I look at the strength of the state’s case, and the incentive
to evade trial, that is also something that we take into
account in
deciding whether he is a flight risk
.
This case that he is facing of rape is a strong case
.
I am not going to go into the merits to say exactly why I say so,
because the trial court will deal with that. But he is facing
an
extremely strong case of rape.
If he is convicted of this offence, he is going to prison for life.
That is a very long time.”
[11] In summing up,
the court
a quo
stated that:
“
His
wife and his sister, all of them had to motivate him to come to the
police and to hand himself over. He was also eventually
forced by the
circumstances when the investigating officer said, well I am going to
circulate him. He is going to be a “wanted”
man. So, they
used that to try and motivate him to rather come to the police
station to face the music, but his intention all the
way was to avoid
this case. He also tried to get his sister to influence the witness,
to make contact with the family so that they
can make this case go
away as correctly pointed (sic) by the state, sweeping it under the
carpet.
Now
we do not know what is going to happen now
,
that he knows all the facts and that he now knows that he is facing
life imprisonment. All his other attempts to try and make-
get this
case to go away failed.
There is
a great possibility or a probability, a great probability he will
either disappear again or threaten the safety of the
complainant,
after today.
So, for those reasons,
I find that it is not in the interest of justice that bail be
granted.
He must be kept in custody until this case is finalised
and therefore bail is refused.”
[12] It is
therefore evident that the state’s case hinges on the
establishment of the grounds in section 60 (4)(b) and(c)
of the Act
which provides that the interests of justice do not permit the
release from detention of an accused if there is the
likelihood that
he would attempt to evade his trial when released on bail or would
attempt to influence or intimidate witnesses
or conceal or destroy
evidence.
[13] Sections 60
(6) and (7) enjoin the court to consider the factors contained
therein to establish whether the grounds in
section 60 (4)(b) and (c)
are established. It is also clear from the record that the court
a
quo
did consider the factors mentioned in section 60 (6) of the
Act. However, it is not clear whether the court did consider the
binding
effect and enforceability of bail conditions which may be
imposed and the ease with which such conditions could be breached.
Similarly,
there was scant or no consideration whatsoever of how
effective and enforceable bail conditions prohibiting communication
between
the accused and the witness were likely to be.
[14] It is indeed
so that the appellant failed to wait for the police at his workplace
and disappeared for a period of time
before he surrendered himself to
the police. This disappearance should be viewed in context, taking
into account the appellant’s
explanation and the testimony of
Captain Sykes.
[15]
Both the state witness and the court talked of the possibility that
the appellant might not attend his trial and threaten the
complainant. It would also appear that, on perusing the record, the
court a quo did not appreciate the difference between a possibility
and a probability. The legal authorities are clear that a court
should not grope in the dark and speculate; a court must make a
finding on the probabilities. Refusing bail merely because there is a
risk or a possibility that one or more consequences in section
60(4)
of the Act will result, is not in the interests of justice. If the
court cannot find that one or more of the consequences
will probably
occur, then the detention of the accused is not in the interests of
justice and he should be released.
[1]
[16] There is no evidence
on record that the appellant threatened the safety of the
complainant. The allegation by the investigating
officer that the
appellant’s sister indicated to her that she would like to meet
the complainant and her family does not
justify the conclusion that
he intimidated or threatened her safety.
[17] It is not clear why
the court
a quo
was of the view that the appellant faced an
extremely strong case as it did not divulge the reasons. It is also
not clear what was
the “
incentive to evade trial”
that should be taken into account in determining whether the
appellant was a flight risk. The applicant’s defence is based
on consent. He testified that the complainant gave him her phone
numbers freely and voluntarily, whereupon he phoned her the following
day after the incident. The complainant, in her statement, stated
that she gave him the numbers after he dropped off her friends
when
he forcefully requested them. This allegation by the state that the
numbers were forcefully requested was denied by the applicant
in
cross-examination and he pointed out that it would be unreasonable of
him to phone the complainant a day after he had allegedly
forced
himself upon her.
[18] According to the
investigating officer, the complainant gave the applicant the phone
numbers after he had driven with her to
an open space near a pub and
church. He had locked the car doors, pushed the complainant’s
chair, lifted her mini skirt and,
when she thought he was about to
rape her, she then gave him the numbers. The locality and the
circumstances where the incident
took place, the time when the phone
numbers were given and the subsequent telephone call may have a
bearing on the defence put
up by the appellant.
[19] Having considered
the evidence led by the appellant in the court
a quo,
I am
satisfied that the interests of justice permit his release. I am also
not persuaded that the appellant is a flight risk. There
is no
evidence that he will influence and intimidate witnesses. He
testified that if bail were granted, he would abide by the strictest
bail conditions, report before and after work, on weekends and post a
high bail. I am of the view that the imposition of appropriate
bail
conditions will limit the risks that he may not attend his trial. The
appeal should therefore succeed and the appellant granted
bail with
appropriate bail conditions.
[20] I, therefore, grant
the following order:
Order:
1.
The appeal is upheld and the magistrate’s
order refusing bail is set aside.
2.
Pending the outcome of the trial, the
appellant is granted bail in the amount of R 10 000.00.
3.
The appellant’s release is subject to
the following:
3.1
The appellant must appear in the
Bloemfontein magistrate’s court on each and every date to which
his trial has been remanded.
3.2
The appellant shall report to the Park Road
Police Station daily between the hours of 05h00 in the morning and
19h00 in the afternoon;
3.3
The appellant shall not directly or
indirectly have contact with any state witnesses;
3.4 The appellant
shall not leave the area of Bloemfontein without the written
permission of the investigating officer;
JJ MHLAMBI, J
Counsel
for the applicant:
Adv.
B Dlamini
Instructed
by:
Wesi
Attorneys
107
Zastron Street
Westdene
Bloemfontein
Counsel
for the respondent:
Adv.
Tshefuta
Instructed
by:
Director
of Public Prosecutions
Waterfall
Building
Bloemfontein
[1]
S
v Swanepoel
1999 (1) SACR 311
(O). S v Atcheson
1991 (2) SA 805
(NmH).