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[2023] ZAFSHC 435
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Magudumana v S - Appeal (A156/2023) [2023] ZAFSHC 435 (7 November 2023)
FLYNOTES:
CRIMINAL – Bail –
Flight
risk
–
Appeal
against refusal of bail by magistrate – Prosecution
confirming charge for Schedule 5 offence – Evidence
that
appellant found in Tanzania without having used passport –
Various means that appellant used to claim body to
be used to
facilitate prison escape – Nature of bail that expected of
judicial officer to look into future behaviour
of appellant using
appellant’s past behaviour – Magistrate did exactly
that – Appeal dismissed –
Criminal Procedure Act 51 of
1977
,
s 65(1).
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case No: A156/2023
In
the matter between: -
NANDIPHA
MAGUDUMANA
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
JORDAAN,
AJ
JUDGMENT
BY:
JORDAAN, AJ
HEARD
ON:
01 NOVEMBER 2023
DELIVERED
ON:
07 NOVEMBER 2023
INTRODUCTION:
[1]
This is an appeal in
terms of section 65(1) of the Criminal Procedure Act 51
of 1977 (the
Act) against the refusal by the Magistrate at Bloemfontein to release
the appellant to bail on the 11
th
of September 2023.
The
Learned Magistrate refused bail on the grounds that the appellant is
a flight risk and that no bail condition will assist under
the
circumstances to limit the risk and that the appellant did not
satisfy the court that it is in the interest of justice for
her to be
released on bail.
[2]
The appellant is
charged, together with other accused, on an array of criminal
offences ranging from fraud, corruption, violation of a body,
defeating the ends of justice and other charges. The appellant with
her co-accused is to be arraigned and stand trial in the Bloemfontein
High Court. One of the co-accused of the appellant is Thabo
Bester,
accused 5 in the case, who was previously convicted on charges of
rape and murder and was serving life imprisonment in
Mangaung
Correctional Prison, referred to as G4S. Accused 1,6,7,8,10,11 and 12
were employed at G4S; accused 3 was an IT specialist
at G4S; accused
2 is the appellant’s father and accused 9 was the appellant’s
gardener. The charges in the instant
matter arise from the alleged
common aim of the accused persons that Thabo Bester must escape from
prison and it is alleged that
they all acted in the furtherance of
that common purpose in effecting his escape.
[3]
The appellant lodged
a formal bail application, which proceedings were adjudicated
on the
strength of affidavits filed by both the appellant and the
prosecution. It was agreed between the parties that the offences
that
the appellant face resort under Schedule 5 to the Act.
[1]
Accordingly, the appellant bore the onus at the bail hearing to
satisfy the court
a
quo
that the interests of justice permits her release on bail. Subsequent
to the handing in of the affidavits and during closing arguments,
the
appellant disputed that the offences resort under Schedule 5 in
response to which the prosecution handed in a written confirmation
in
terms of section 60(11A)(a) of the Act that the appellant will be
charged with an offence referred to in Schedule 5, the court
a
quo
then proceeded to hear the closing arguments.
[4]
In the Notice of
Appeal filed on record the appellant assail the court
a quo’s
refusal to remit the appellant on bail on the following grounds:
1.
The Court misdirected itself in finding that the charges
preferred against the Appellant fall under Schedule 5 despite the
evidence
of the Respondent tendered through the Investigating
Officer.
ALTERNATIVELY
In
the event that this Honourable Court does not find in favour of the
ground referred above, it is respectfully submitted that
the Court a
quo erred in finding that the interest of justice does not permit the
release of the Appellant on bail.
2.
The court erred in finding that the certificate issued by the
Director of Public Prosecution (DPP) constitutes sufficient evidence
to prove the charges of corruption against the Appellant.
3.
The Court erred in finding that there is a strong case against
the Appellant on many charges including corruption charges.
4.
The Court misdirected itself by finding that the Appellant is
a definite flight risk and that no bail condition will assist under
the circumstances to limit this risk. The Court patently ignored the
possibility of imposing alternative bail conditions that could
be
used to minimise the risk, if there is, of absconding.
5.
The Court erred in finding that when the Appellant left the
country, she knew that she most probably will not return.
6.
The Court misdirected itself in finding that the Appellant
knowing it to be false supplied false information at the time of her
arrest.
7.
The Court erred in prematurely pronouncing on the merits
reserved for the trial court and finding that the Appellant will have
more
opportunities and means to assist Mr. Bester to escape.
In doing so the court
failed to take into consideration that there was no evidence to
support its finding. It is also noteworthy
that the court failed to
properly analyse the evidence before it and unfairly placed undue
weight on the aspects not tendered in
evidence by the respondent.
8.
The Court misdirected itself by ignoring the Appellant’s
evidence relating to having an alternative address. It is submitted
that equal weight ought to be attached to the evidence of the
Investigating Officer as well as the Appellant.
9.
The Court misdirected itself in placing undue weight on the
respondent’s allegations that the Appellant rented a black
Mercedes
Benz in South Africa, and this vehicle was found abandoned
in Zimbabwe before she was arrested. Notwithstanding the fact that
these
findings lacks material details such as date, place of the
rental, and how it was abandoned. It is submitted with respect that
there are no grounds in law to reject the Appellant’s version
and same should carry equal weight and the evidence of the
Investigation Officer should not be accepted above that of the
Appellant.
10.
The Court erred in finding that there should be no reason why
the Appellant would elect to disclose the full information regarding
her kidnapping. In doing so, the Court unfairly ignored the
submissions by the Appellant to exercise and assert her right to
remain
silent and not to disclose the basis of her defence until at
the appropriate time and forum.
11.
The Court misdirected itself in finding that there is evidence
that accused number 1 was promised millions to arrange this escape,
and he arranged for accused 3,6,7,8,10 and 12 to assist. In doing so,
the court failed to appreciate that no evidence of such nature
was
presented by the respondent.
12.
The Court misdirected itself in finding that the Appellant’s
claim on being kidnapped by Accused no. 5 was not supported by
the
available evidence. In doing so, the court unjustly rejected the
Appellant’s version.
13.
The Court misdirected itself in finding that the Appellant has
the necessary means, the know-how to leave the country. It is
respectfully
submitted that the latter finding is not supported by
evidence.
14.
The Court erred in finding that the chances of conviction is
good and in so doing assumed the role of a trial court. It is
respectfully
submitted that even in the event that a strong case
against the Appellant existed, this was no reason to refuse the
Appellant bail
as the Court erred in failing to acknowledge that bail
is non penal in character.
15.
The Court erred in finding that it appears the Appellant
and accused 5 were able to convincingly deceive everyone to work with
them.
In doing so the court made a factual conclusion with no
supporting evidence.
16.
The Court misdirected itself in finding that by allowing the
Appellant to go out on bail will enable her to yet again try to
facilitate
another escape if she wants to.
In doing so, the Court
reduced the bail application into a drawn-out full dress-rehearsal
trial before the criminal trial.
17.
The Court furthermore erred in finding that if the Appellant
is out on bail nothing will stand in her way. She will have access to
all the necessary information and people to facilitate another
escape. There is no evidence supporting this finding.
[5
]
Before the Court,
Counsel appearing for
the Respondent made the following submissions:
5.
1 Counsel submitted that the decision
by the bail court was not wrong and that a court on appeal
can only
set aside such decision, if the court hearing the appeal is satisfied
that the decision was wrong;
5.2
Counsel submitted that the offence
resort under Schedule 5 that the Director of Public
Prosecutions can
issue such certificate at any time before an accused person pleads.
[6
]
Section
65(4)
of the
Criminal Procedure Act 51 of 1977
, stipulates the
requirements for setting aside any bail decision. The section reads
as follows:
“
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.”
[7
]
In
S v Barber
1979 (4) SA 218
(D) 220E-H Hefer J remarked as follows:
“
It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application. This Court has to be persuaded that the magistrate
exercised the discretion which he has wrongly. Accordingly, although
this Court may have a different view, it should not substitute its
own view for that of the magistrate because that would be an
unfair
interference with the magistrate’s exercise of his discretion.
I think it should be stressed that, no matter what
this Court’s
own views are, the real question is whether it can be said that the
magistrate who had the discretion to grant
bail but exercised that
discretion wrongly.”
[8
]
Bearing
in mind the provisions of
s65(4)
and the authorities it is
accordingly necessary to find that the magistrate misdirected himself
or herself in some material way
in relation to either fact or law in
order to interfere on appeal.
[2]
If such misdirection is established, the appeal court is at large to
consider whether bail ought, in the particular circumstances
to have
been granted or refused. In the absence of a finding that the
magistrate misdirected him or herself the appeal must fail.
[3]
[9
]
The
appellant advanced several grounds upon which it was submitted that
the magistrate had erred in refusing to remit the appellant
to bail.
I turn to deal with the alleged misdirections hereunder.
[10
]
The
first of these relate to the finding that the charges preferred
against the appellant fall under Schedule 5 despite the evidence
of
the respondent tendered through the Investigating Officer, while the
second deals with the court having erred in finding that
the
certificate constitute sufficient evidence to prove the charges of
corruption against the appellant. I will deal with both
simultaneously for reasons that will become apparent.
[11]
In this regard the evidence of the Investigating Officer started off
with him stating:
“
My
investigation revealed that accused 1 was promised R7 million to
orchestrate the escape. He enlisted the assistance of his co-accused,
that being accused 3,6,7 and .......(indistinct)”
[4]
He later further testified on the charges that in count 3 the offence
is the contravention of
Section 3(b)
of Act 12 of 2004, that is
corruption. “
The
applicant and her co-accused acted in the furtherance of a common
purpose. Their aim was that Bester must escape. The objective
evidence of bank statements shows that the applicant was also on
occassions a source who provided the money to accused 1 for
distribution
to their co-accused. So far, it has been established the
applicant paid R85 000 to accused 1.”
[12
]
Corruption
is defined in the PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT
NO 12 OF 2004(PRECCA) as follows:
“
3.
General offence of corruption- any person who, directly or
indirectly-
(a)
accepts or agrees or offers to accept any gratification from any
other person, whether for the benefit of himself or herself
or for
the benefit of another person; or
(b)
gives or agrees or offers it give to any other person any
gratification, whether for the benefit of that other person or for
the benefit of another person,
In
order to act, personally or by influencing another person so to act,
in a manner-
(i)
That amounts to the-
(aa)
illegal, dishonest, unauthorised, incomplete, biased, or
(bb)
misuse or selling of information or material acquired in the course
of the,
Exercise,
carrying out or performance of any powers, duties or functions
arising out of a constitutional, statutory, contractual
or any other
legal obligation;
(ii)
That amounts to-
(aa)
the abuse of a position of authority;
(bb)
a breach of trust; or
(cc)
the violation of a legal duty or a set of rules;
(iii)
Designed to achieve an
unjustified result; or
(iv)
That amounts to any other
unauthorised or improper inducement to do or not to do anything, is
guilty of the offence of corruption.”
The
word “gives” includes an agreement by X to give the
gratification to Y, or the offering by X to give it to Y. The
word
“accepts” in turn incudes an Agreement by Y to accept the
gratification or the offering by Y to accept it.
[5]
This means that the corruption is complete when there is an offer of
gratification which is accepted in order to act in an illegal
manner,
irrespective of what amount is ultimately paid.
[13
]
Schedule 5 provides for any offence
relating to Chapter 2 of the PRECCA:
(a)
involving amounts of more
than R500 000,00; or
(b)
involving amounts of more
than R100 000,00, if it is alleged that the offence
was
committed by a person, group of persons, syndicate or any enterprise
acting in the execution of a common purpose or conspiracy;
or
(c)
if it is alleged that the
offence was committed by any law enforcement officer-
(i)
involving amounts of more than
R10 000,00; or
(ii)
as a member of a group of
persons, syndicate or any enterprise acting in the execution
of a
common purpose or conspiracy.
[14
]
However, in the instant case the Director of
Public Prosecutions(DPP) also issued a certificate in terms
of
section 60(11A)(a) of the Act, which was accepted as Exhibit J by the
court
a quo
.
In terms of the certificate the DPP confirmed that the appellant and
her co-accused will be arraigned on amongst others, four(4)
counts of
contravention of section 3(a) and (b) of Act 12 of 2004, Corruption,
respectively, wherein R2,5million was offered and
R40 000,00 and
R85 000,00 was paid and R500 000,00 was offered and
R10 000,00 was paid) emanating from incidents
which occurred
during April 2022 in the district of Mangaung. The c/s3(a) and (b)
resort under Schedule 5 of the Act as it involves
amounts more than
R500 000,00 and or involves amounts more than R100 000,00
if it is alleged that it was committed by
a person, group of persons
or syndicate acting in the execution or furtherance of a common
purpose or conspiracy.
[15]
Having regard to the court
a quo’s
judgment in this regard, the court quoted section 60(11A) and ended
off by stating:
“…
the
written confirmation shall upon its mere production be prima facie
proof of the charges to be brought against such a person.
Prima facie
proof become conclusive proof in the absence of evidence to the
contrary. This court does not have any evidence to
the contrary
therefore the application will be done in terms of Schedule 5 and the
onus rests upon the applicant to satisfy the
court that the interest
of justice permits her release on bail as initially agreed.”
The wording is clear, it shows
that the court
a quo
did not find, as submitted on behalf of the appellant, that the
certificate is sufficient evidence to prove the charges of corruption
against the appellant, but that it is evidence of the charges to be
brought against the appellant.
[16]
In the case of S v Botha en ‘n ander
[6]
Viviers ADCJ, as he then was, stated:
“
Namens
beskuldigde 1 en 3 is ter aanvang voor ons betoog dat die Wetgewer
nie kon bedoel het dat ‘n blote bewering in die
akte van
beskuldiginig dat ‘n beskuldigde aan ‘n Bylae 6 misdryf
skuldig is, voldoende is om art 60(11)(a) van die
Wet van toepassing
te maak nie. Volgens die betoog moet die hof wat die borgaansoek
aanhoor, self eers die feite evalueer ten einde
te bepaal of die
Staat by die vehoor n Bylae 6 misdryf sal kan bewys, voordat art
60(11)(a) toepassing vind. Ek kan nie met die
betoog saamstem nie.
Die bewoording van die subartikel is duidelik en ondubbelsinning en
is net vir een uitleg vatbaar. Dit is
dat die formulering van die
aanklag in die akte van beskuldiginig, indien nodig, aangevul deur ‘n
skriftelike bevestiging
ingevolge art 60 (11A), beslissend is vir die
vraag of ‘n beskuldigde hom van die bewyslas in art 60(11)(a)
moet kwyt om
sy vrylating op borgtog te verkry.” In this regard
see also S v van Wyk
[7]
and Gade
v S
[8]
where it was stated:
“
Before
the onus falls on the accused a jurisdictional factor has to be
established by a certificate from the Director of Public
Prosecutions
or
full description of the charge in the charge sheet.”
In the instant case the court
a
quo
relied on the certificate issued
by the DPP, as is clear from the Act and the authorities quoted
herein, this court finds that
the court
a
quo
did not misdirect itself in
doing so. This challenge only arose during closing argument, at no
stage did the appellant request
the reopening of their case in order
to challenge the Schedule of the bail application.
[17]
The appellant submit that it was wrong for the court
a
quo
to find that there is a strong
case on mere affidavits. In the court
a
quo
the affidavits was submitted as
evidence, thus the evidence was that there are witness statements,
fingerprint evidence and documentary
evidence linking the appellant
to the various charges that will be levelled against her. It should
be noted from the outset that
the appellant did not in her founding
affidavit set out to challenge the strength of the State case against
her. The essential
allegations of fact which the respondent will
prove against the appellant at trial was set out in the affidavit of
the Investigating
Officer, Colonel Flyman. These allegations and the
evidence that the respondent has available to substantiate them were
summarised
in detail by the court
a
quo
in its judgment.
What
the court is called upon to consider, in a bail application, is the
nature of the evidence that is available to the prosecution
and,
absent a challenge in the bail proceedings to the admissibility or
reliability of that evidence, the court will accept the
evidence.
It
is upon this acceptance that the court decides whether the case is
strong or weak.
In
this instance there was no admissibility challenge founded upon
convincing evidence calling into question the admission of
the evidence of the fingerprint evidence
showing that the appellant claimed the body of the deceased at the
mortuary, the witness
statements and documentary evidence. This Court
cannot find any misdirection in this finding of the court
a
quo.
[18]
The appellant submitted that the court
a
quo
erred in finding that the
chances of conviction is good it assumed the role of the trial court,
even if there is a strong case,
that does not provide reason to
refuse appellant bail.
The
magistrate considered the strength of the state case against the
appellant as but one of the factors to be considered when deciding
whether there was a likelihood that the appellant would evade trial,
as the court was required to do and the court was cognisant
of the
role that the assessment of the strength of the state’s case
plays in the overall decision whether the appellant
satisfied
the court that the interests of justice permit her release. This
approach is correct. The fact that the magistrate found
that there is
a strong case against the appellant also cannot be criticized.
[19]
The judgment was in ground
eleven of the notice to appeal assailed that there was no evidence
that accused 1 was offered millions and he arranged for accused
3,6,7,8,10 and 12 to assist. In this regard the evidence of the
Investigating Officer in his affidavit started off with him stating:
“
My
investigation revealed that accused 1 was promised R7 million to
orchestrate the escape. He enlisted the assistance of his co-accused,
that being accused 3,6,7 and .......(indistinct).”
[9]
The court
a
quo
thus did not misdirect itself in finding that there was such evidence
submitted.
[20]
It was submitted that the court misdirected
itself in finding that the appellant is a flight
risk, that no bail
condition will limit that risk and that the appellant has the
necessary means and know-how to leave the country
and that the
appellant left the country willingly. In S v Hudson
[10]
it was held that where an accused applies for bail and confirms on
oath that he has no intention of absconding, due weight should
be
given to his testimony, however implicit reliance cannot be given on
the mere ipse dixit of the accused. Ngcobo J in S v Thornhill
[11]
stated that the “reliability of such a statement must be
assessed in the light of the other established facts.”
[21]
The court
a quo
had in contrast, the
evidence of Colonel Flynn which stated that the appellant was found
in Tanzania on the 07th of April, without
having used her passport to
cross the various borders to get there. In this regard there is also
a statement of a witness which
states that the appellant under false
pretences requested her passport which was found by the police in
Tanzania. The affidavit
of the investigating officer further
indicated the various means that the appellant made to claim the body
which was to be used
to facilitate Thabo Bester’s escape, in
the process even making use of the legal process to facilitate
claiming a body as
Thabo Bester and requesting an interdict against
the police, showing no regard for the law. This the state contended
showed that
the appellant is a flight risk, with no regard for the
law and no bail condition would have any effect, the fact that she
was able
to enter other countries without having her passport stamped
shows her know-how of how to evade being traced. The appellant’s
behaviour challenging her return is contrary to the behaviour
expected of a person kidnapped and she never in all this time took
steps to report same, thus according to Colonel Flynn calling her
kidnapping into question.
[22]
This Court cannot find that the
court
a
quo
misdirected itself in the circumstances as the court had regard to
the evidence and assessed it holistically
[12]
and made inferences based on the evidence presented as a whole.
[23]
The submission that the court
misdirected itself in finding that should the appellant
be released
on bail nothing will stand in her way as she will have access to all
the people and information to facilitate another
escape and in
finding that the appellant and accused 5 convincingly deceived people
to work with them. This court cannot fault
the finding of the
Magistrate. The nature of bail is that it is expected of the judicial
officer to look into the future behaviour
of the appellant, using the
appellants past behaviour. The Magistrate did exactly that, she had
regard to the evidence that the
state presented, where the appellant
was the main role player in facilitating the escape of the accused
5.
[13]
Her deductive reasoning
based on evidence cannot be faulted.
[24]
The further attack on the judgment was that
the magistrate erred in finding that the appellant
knew that when she
left that she will probably not return and in ignoring the appellants
evidence of an alternative address. The
court had regard to the
evidence that was presented by the state that the appellant vacated
her house that she was renting prior
to leaving, her movable assets
were removed and no evidence from the appellants side of what
happened with her property in the
face of the state evidence that she
removed it prior to leaving, the car which appellant rented was found
outside the borders of
the country, her own car was not used. The
appellant submitted evidence of a friend offering her an alternative
address. There
was no rebuttal in regard to this evidence of the
state. This evidence was considered by the court
a quo
in
making its conclusion and this court cannot fault it.
[25]
The court
a
quo
it was submitted misdirected itself in finding that the appellant
supplied the police with false information. When regard is had
to the
appellant’s affidavit
[14]
,
she stated that she stayed at the mentioned address prior to her
arrest for approximately two years. The appellant vacated the
premises prior to her later arrest in Tanzania and also directed her
parents to vacate the premises in Sandton during March, yet
at her
later arrest in April she provided the same address she had vacated.
The court cannot be faulted for its conclusion based
on evidence
presented at her arrest.
[26]
The court
a quo
was assailed in not
respecting the appellants right not to disclose the further details
of her being forced to leave the country
against her will. The state
made it clear that the appellant is not charged for an offence of the
nature and the person implicated
is accused 5, according to the
submission of the appellant. The court considered that details around
being forced are factors
to be considered as against the
considerations of being a flight risk in circumstances where the
available evidence shows the opposite.
In bail proceedings the
applicant may excercise his or her right to silence as was stated in
the unreported case of S v Basodien
GPHC A397/2019 delivered on 15
January 2020. He cannot be expected to disclose his defence that will
be raised at trial, but non-disclosure
can hardly enure to the
benefit of the bail applicant, especially in those statutory instance
where he or she carries a burden
of proof. In the instant case, the
details pertain to a charge which has not been levelled against
anyone and much less the appellant.
[27]
In my view, the magistrate’s finding,
having regard to all of the relevant factors addressed
in the
evidence, that there was a real risk that the
appellant
is a flight risk and that no bail condition will assist under the
circumstances to limit the risk and that the appellant
did not
satisfy the court that it is in the interest of justice for her to be
released on bail
was
not tainted by error or misdirection.
I
t
must therefore stand as correct.
[28]
In the circumstances I make the following
order:
28.1
The appeal is dismissed.
___________________________
M.T.Jordaan
Acting
Judge Free State High Court,
Bloemfontein
APPEARANCE:
Advocate
Machini Motloung for Appellant
Advocate
Amanda Bester for state
[1]
Paginated
Bundle
Part
2 page 237 line25 to page 238 line 1 and lines 21 to 24
[2]
S
v Ali
2011
(1) SACR 34
(E)
at para 14; S v M
2007
(2) SACR 133
(E)
[3]
S
v Porthen and others
2004
(2) SACR 242
(C)
at par [11]
[4]
Index
bundle page 24 line 2-7
[5]
Snyman’s
Criminal Law Seventh edition Updated by SV Hoctor page 357.
[6]
2002
(1) SACR 222
(SCA) at [16]
[7]
2005(1)
SACR 41 (SCA) at [3]
[8]
2007
(3) All SA 43 (NC)
[9]
Index
bundle page 24 line 2-7
[10]
1980
(4) 145 (D)
[11]
1998(1)
SACR 177 (C) 182F
[12]
Paginated
Bundle page 206 lines 19-21
[13]
Paginated
Bundle page 200 line 1 to 25
[14]
Paginated
Bundle page 241 paragraph 7.1.3