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[2023] ZAKZPHC 158
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S.W.B v S (15491/23P) [2023] ZAKZPHC 158 (19 December 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 15491/23P
In
the matter between:
S[...]
W[...] B[...]
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
the Magistrates Court, Greytown Mr. CF Masikane
sitting as court of first instance:
(a)
The bail appeal succeeds, and the order of the court below is set
aside and replaced with
the following order:
(b)
The appellant is granted bail in the sum of R10 000.00 subject to the
following conditions:
(i)
The appellant is prohibited from entering Greytown, unless he is
required to
attend court in this matter.
(ii)
The appellant is prohibited to make contact, directly or indirectly
with the complainant
and/or with the complainant’s grandmother.
(iii)
The appellant is to report at Kranskop police station twice a week,
every Tuesday and
Friday between 6am and 6pm.
(iv)
Should he change his current address, the appellant must inform the
investigating officer.
(v)
The appellant is ordered to attend his trial on the given date and on
subsequent days
not later than 8h30am and to remain in attendance
until this matter is finalized or he is excused by the court.
(vi)
The appellant is to remain at his place of residence at Matimatolo.
JUDGMENT
Delivered
on: 19 December 2023
Ntlokwana
AJ
THE
INTRODUCTION
1)
This is a bail appeal from the Greytown Magistrate’s court,
where the applicant
brought his bail application on the 15th of
August 2023 with a judgment refusing bail delivered on the 23rd of
August 2023. The
appellant was arrested on the 23rd of July 2023 on a
charge of rape, the victim is a minor child below 16 years old.
2)
The charge preferred against the appellant is a Schedule 6 offense.
This was
common cause between the parties. The provisions of section
60(11)(a) of the Criminal Procedure Act 51 of 1977 thus, are
applicable.
This section requires the applicant to present evidence
and satisfy the court that exceptional circumstances exist, which is
in
the interest of the justice, warrant his release on bail.
3)
In refusing bail application, the learned Magistrate concluded that
there was
nothing out of the ordinary in the applicant’s case,
even ordinary common circumstances taken cumulatively failed to
establish
exceptional circumstances.
[1]
4)
The learned Magistrate made the following findings:
a)
That there is a likelihood that the applicant will attempt to
influence or intimidate
the State witnesses more in particular the
victim;
b)
that there is a likelihood that the release of the appellant on bail
will disturb
the public peace, cause shock and outrage in the
community;
c)
that, if released on bail, there is a likelihood to evade trial as he
is facing
life imprisonment if convicted of the offense.
5)
The appellant is challenging the findings of the learned Magistrate
on the basis
that, the learned Magistrate was wrong to find as he did
that, the appellant had failed to satisfy the court that there exist
exceptional
circumstances which, in the interest of justice, warrant
the admission of the appellant to bail.
6)
Further, it is also challenged that there is a likelihood that the
appellant
posed a risk in respect of any of the traditional bail
considerations if he were to be released on bail, specifically
section 60(4)(a)
to (d) of the Criminal Procedure Act.
7)
Another ground of appeal is that the learned magistrate was wrong in
his findings
that there is a likelihood that the appellant’s
release on bail will disturb the public order as envisaged in section
60(4)(e)
of the Criminal Procedure Act.
8)
In terms of section 65(4) of the Criminal Procedures Act, it is
stated 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 on its or his opinion,
the lower
court should have given.”
This
court, therefore, is not at liberty to interfere with the decision of
the learned magistrate, unless it is satisfied that the
decision
taken by the learned magistrate is wrong in which case the judge
hearing the appeal will give the decision ought to have
been given by
the lower court.
9)
This assertion finds support in S v Porthern and others
[2]
where it is stated that the court’s power to intervene in terms
of section 65(4) of the Criminal Procedure Act, is not per
se
strictly limited to what is provided in S v Barber.
[3]
The appeal court is empowered to undertake its own assessment of the
evidence presented before the lower court and make its own
finding,
whether the appellant has discharged the onus in terms of satisfying
the court that there exist exceptional circumstances,
which in the
interest of justice, warrant the appellant to be released on bail, as
envisaged in section 60(11)(a).
10)
Before an appeal court can interfere with the finding of the lower
court, it is required that
there must be a finding that the
magistrate misdirected himself, in a material way either on facts or
on the interpretation of
the law, absent misdirection, the appeal
cannot succeed.
THE
FACTS
11)
The appellant is the father of the complainant, a 7 year old female
minor child. He testified
on his behalf, stating that he is 60 years
of age, and is residing in Matimatolo area. He works at the
Department of Transport
earning R14 000 a month. Sometimes he would
be stationed at Greytown or alternatively at Kranskop, and he regards
these two places
as his workstations where he would be placed for a
year or two on either of them. He is the father of eleven (11)
children, two
(2) of whom are minors, including the complainant. Both
minors are now living with their grandmother in Greytown, where they
also
attend school there.
12)
As a side business, the appellant runs a tuck shop in Matimatolo with
the assistance of his partner
and earns about R6 000 to R8 000 a
month from the tuck shop. To support the minor children, the
appellant would send funds to their
grandmother, a variety sum of no
less than R1 500 per month.
13)
On 29 June 2023, the appellant fetched the complainant together with
the younger sibling, a 5-year-old
boy, from their grandmother in
Greytown for visitation at his home in Matimatolo. They stayed with
him till 5 July 2023, on that
date, the appellant left to Newcastle,
for work purposes and remained there for a while.
14)
The appellant received a call on the 9th of July 2023 from his
partner at Matimatolo, advising
that she had noticed that the
complainant has blood drops or blood clots in her urine every time
she goes to the bathroom. The
appellant requested his partner to take
the complainant and the other minor child to their grandmother in
Greytown, who then must
take the complainant to the doctor for a
medical checkup. The appellant was in Newcastle and in no position to
attend to the sickness
of the complainant at the time. Indeed, the
appellant’s partner took the minor children to their
grandmother in Greytown
and reported her observations.
15)
The appellant was thereafter informed by the grandmother that the
complainant has been abused,
and no further information was provided.
The appellant returned from Newcastle on 27 of July 2023 and went to
hospital to enquire
about the complainant’s wellbeing. At the
hospital, he did not find the complainant, and was informed at the
hospital by
Police Officer Xaba that the complainant has been taken
by social workers and that a case has been opened at Greytown Police
Station,
and that the investigation was handed to a female Police
Officer.
16)
The following day on 28 July 2023, the appellant went to the Greytown
Police Station to meet up
with the Police Officer handling the
matter. On his way, he met the grandmother of the complainant and
asked her how the complainant
was coping. The response was that the
child was suffering from stomach aches, he noticed that the
grandmother had no interest in
talking to him. He proceeded to the
police station where he met Sergeant Mazibuko. Sergeant Mazibuko
confirmed with the appellant
if he was Mr. B[...] and asked him to
get inside. The appellant moved inside, he was then informed that he
was being arrested for
the rape of the complainant and was detained
at the police cells. In respect of the charge, he intends to plead
not guilty.
17)
The appellant further testified that he is a member of the Economic
Freedom Fighters, a political
party, where he is an active political
participant and is a municipal councilor. He is willing to relocate
to Kranskop as he is
also allowed to work in Kranskop. The appellant
closed his case.
18)
The State called one witness, Sergeant Thembeka Mgobhozi. Under
cross- examination of the appellant,
it was put to the appellant that
the Investigating Officer was going to come to court and testify
that, if appellant were to be
released on bail:
a)
it would cause public outrage;
b)
the appellant is likely to threaten the victim in this matter;
c)
the appellant was likely to interfere with the investigation because
the witnesses
are known to the appellant.
19)
In response to these allegations, the appellant denied that he was
likely to cause any of the
allegations put to him.
20)
Sergeant Mgobhozi testified that she got a call on the 26th of July
2023 from a Social Worker
from Greytown Hospital requesting her to
come to the hospital. On arrival, she met with the complainant who
informed her that she
was a victim of rape by her father, the
appellant. Sergeant Mgobhozi was told by the complainant that, when
the appellant was done
hurting her, he told her to go and take a
bath, the appellant also told her not to tell anybody and not to
mention what happened
to anybody. The complainant did not tell
anybody after the incident as she was scared. The complainant was
only able to tell of
what happened when taken to her grandmother, who
took her to hospital where it was confirmed that indeed the
complainant was sexually
assaulted, and a case of rape was opened on
the 17th of July 2023.
21)
Sergeant Mgobhozi highlighted two main grounds upon which the State
is opposing bail:
a)
One was that if the appellant is released on bail, she felt that
there was a
likelihood that it will cause public disturbance and
undermine public peace. The reason she gave was that since the start
of the
appellant’s appearances at court, she had seen the
community gathering outside the court demanding that the appellant
should
not be granted bail.
b)
The second ground stated by Sergeant Mgobhozi was that appellant is a
threat
to the complainant. In support of this, she stated that the
appellant has already threatened the complainant, telling her not to
mention to anybody about what happened. Sergeant Mgobhozi was at the
hospital when the appellant went there looking for answers
as to the
whereabouts of the complainant, she noticed how the complainant
refused to see the appellant, telling everyone not to
tell the
appellant that she was there, apparently scared of the appellant.
22)
Under cross-examination, Sergeant Mgobhozi testified that there was
nothing that she was aware
of, when asked if after the arrest of the
appellant had there been any indication of threats by the appellant
to the complainant.
She also had no information that there was a
likelihood of the public disorder and outrage if appellant was
released on bail. She
further conceded that the appellant is unlikely
to run away and not attend trial. It was also conceded that, despite
the alleged
threat to the complainant, she was able to tell what
happened to the nurse, social worker and to the sergeant.
23)
After the end of testimony of Sergeant Mgobhozi, the state requested
to hand to court a memorandum
apparently received from the community
leaders,
“
for
the court to consider the memorandum in the bail application and to
attest to what has been attested by the Investigating Officer
about
the community feelings towards this matter.”
[4]
24)
The defense objected, on the basis that the said document has not
been furnished to the defense
and defense had not had sight of it,
nor had taken instructions thereto. Secondly, the defense raised
concern about handing over
a document to court as exhibit without any
evidence under oath where such evidence can be put to scrutiny of
cross- examination.
The learned Magistrate over-ruled the objection,
stating that the document was handed to the state by the community,
it was thus
proper to admit it as evidence. It was marked Exhibit
“B”. The State closed its case.
25)
I am required to determine whether or not on the assessment of the
evidence it can be established
that, there exist exceptional
circumstances, which in the interest of justice, warrant the
appellant’s release on bail and
whether the learned Magistrate
was wrong in his finding.
THE
MEANING OF EXCEPTIONAL CIRCUMSTANCES
26)
In S vs Dlamini and Others,
[5]
Kriegler J observed that:
“
Section
60(11)(a) does not contain an outright ban on bail in relation to
certain offenses but leaves the particular circumstances
of each case
to be considered by the presiding officer. The ability to consider
the circumstances of each case affords flexibility
that diminishes
the overall impact of the provision. What is of importance is that
the grant or refusal of the bail is under judicial
control, and
judicial officers have the ultimate as to whether or not, in the
circumstances of a particular case, bail should be
granted.”
Section
60(11)(a) of the Criminal Procedure Act reads as follows:
“
(11)
Notwithstanding any provisions of this act, where an accused is
charged with an offense referred to –
(a)
in Schedule 6, the court shall order that the accused be detained in
custody until he or she 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
exceptional
circumstances exist which in the interest of justice permit his or
her release.”
The
onus therefore is on the appellant to adduce evidence to the
satisfaction of the court that exceptional circumstances exist
which
in the interest of justice warrant his release on bail. S v Yanta
[6]
confirms this in that, effectively this provision shifts the onus to
the accused to convince the court on a balance of probabilities,
that
there exist exceptional circumstances which in the interest of
justice, warrant the release of the accused on bail.
27)
The conduct of the appellant, leading to his arrest, the manner in
which the accused co-operated
with the police and handed himself to
the police when it turned out that he was the suspect in the matter,
constitute ‘exceptional
circumstances’ which should have
been considered in his favour for the purposes of Section 60(11)(a).
This view finds support
in S v Matshaba
[7]
where Molefe AJ held that:
“
having
regard to all the circumstances of the case, the fact that the
appellant had co-operated with the police and had handed himself
over
to the police when he heard that the vehicle he was storing for some
co-accused was linked to murders, constitutes exceptional
circumstances as envisaged in Sec 60(11)(a).”
28)
The requirement to show exceptional circumstances for purposes of Sec
60(11)(a) does not place
extra-ordinary, over-and-above standard
which would make it impossible for an exceptional but deserving
applicant to obtain bail.
[8]
29)
Whilst the onus is on the accused to prove to the satisfaction of the
Court, it has been held
that where there was an inability of the
Investigating Officer to advance reasons or grounds for refusal of
bail, such inability
constituted ‘exceptional circumstances’
in consideration for release of the accused on bail. Mere accusations
and say
so of the investigating officer are not enough.
[9]
The evidence of Sergeant Mgobhozi tended to lean more on her views
other than sufficient reasons or grounds in opposing bail.
30)
What is to be looked at is whether the proven circumstances are
sufficiently unusual or different
in any particular case. In S v
Vanqa,
[10]
Jafta J observed
that,
“
circumstances
which are ordinary nature to bail applications can, in the context of
the particular case, be exceptional or unusual.
The applicant for
bail in such cases is not required to prove the existence of factors
different to normal considerations listed
in ss(4)- (9) of s60. What
is required of him, however, is to show that such usual or common
factors are, in the context of his
case, blended with the element of
exception or difference. Such circumstances do not require to be
extraordinary in the sense of
a cat giving birth to a dog.”
31)
Commenting on the appropriate application of Sec 60 (11)(a) of the
Criminal Procedure Act, Krigler
J, in S v Dlamini,
[11]
stated that courts should avoid to be caught up on what would be
perceived public sentiments being orchestrated by pressure groups
designed to serve their own interests.
THE
ANALYSIS
32
Counsel for the appellant submitted that, the learned magistrate was
wrong in finding
that there were no exceptional circumstances adduced
by the evidence of the appellant at all. It was highlighted that, the
appellant’s
co-operation with the Police on the 28th of July
2023 at Greytown hospital, and his subsequent attendance on the 29th
of July 2023
to the Greytown police station to meet Sergeant
Mgobhozi, handing himself to be arrested constituted exceptional
circumstances
as envisaged in Sec 60(11)(a). The state’s
counsel, conceded that, the appellant’s co-operation with the
police constituted
exceptional circumstances, the state did not
present any evidence which contradicted the appellant’s
evidence leading to
his arrest. Sergeant Mgobhozi on her testimony
stated that she was at the hospital when the appellant arrived and
being told to
attend to Greytown police station to meet with the
female police officer. The police could have arrested the appellant
on the 28th
of July 2023 but instead requested him to present himself
the following day at Greytown police station. The concession was
correctly
made in my view, on this basis, the learned Magistrate was
wrong in his decision.
[12]
33
The learned magistrate also made a finding that, if the appellant
were to be released
on bail, there is a likelihood that it will
disturb the public peace and will cause shock and outrage to the
community. Under cross-examination,
Sergeant Mgobhozi admitted that
other than the community people who were gathered outside court, who
were demanding that the appellant
should not be released on bail, she
had no knowledge nor information of any likelihood that the community
will disturb peace if
appellant is released on bail. The question to
be asked is whether the people who gathered outside court in
opposition of the bail
were community members or were members of
Abantu Botho Congress Party, a political party whose memorandum was
admitted into evidence
as exhibit “B” under the notion
that it was a memorandum for the community leaders with signatures of
the people who
were opposed to the appellant to be released on bail.
A court should be weary of admitting documentary exhibits, which had
not
been disclosed to the other party. The learned magistrate in his
judgement placed no reliance on the political party’s
memorandum,
however that was not the end of the matter.
34
The gist of the evidence presented by Sergeant Mgobhozi about the
likelihood of community
disturbance of peace and the manner exhibit
“B” was introduced to court leaves one with an
inescapable conclusion that
her evidence about the community's
likelihood to cause disturbance of peace and exhibit “B”
are intertwined, with the
memorandum being a back-up of the evidence
of Sergeant Mgobhozi. This became clear when the court enquired as to
what was the purpose
of the exhibit. The answer from the state was
that it was for the court to go through it, for the court to consider
the memorandum
in the bail application, to attest to what has been
attested by the investigating officer on the feelings of the
community towards
the bail application.
[13]
At no stage was the court informed that the memorandum came from
political party, a rival political party to appellant.
35.
The state misled the court into accepting a memorandum from Abantu
Botho Congress Party
being told it was from leaders of the community.
The memorandum is headed, Memorandum by Abantu Botho Congress (ABC)
in bold and
is directed for the attention of Greytown Magistrate
Court as well as to the South African Police Services, Greytown and
Matimatolo.
The memorandum has seventy-one (71) signatures from
members of Abantu Botho Congress, and amongst other things demanding
refusal
of bail and that their demands be placed on record. True to
their demands, the memorandum was admitted into record as exhibit
“B”.
The learned magistrate, whilst correctly discarded
the contents of exhibit “B” committed a misdirection by
accepting
the evidence of Sergeant Mgobhozi that the release of the
appellant on bail will disturb the public order, as her evidence was
based on the gathering of Abantu Botho Congress Party outside the
court premises. The warning by Krigler J in S v Dlamini
[14]
on ‘the danger of public sentiments being orchestrated by
pressure groups to serve their own ends’ was not heeded by
the
learned magistrate. I am of the view that the learned Magistrate was
wrong in finding that, if appellant is released on bail,
that will
disturb public order.
36.
The learned magistrate has also made a finding that, if released on
bail, there is a likelihood
that the appellant will attempt to
influence or intimidate the state’s witness, in particular, the
victim. The reason for
this finding is that when the appellant
visited the hospital, the complainant did not want to meet with him,
and was scared. The
complainant is now staying with her grandmother
in Greytown and is attending school there. Counsel for the state in
her submission
conceded that there are no threats made to the
complainant since the arrest of the appellant, and that any risk of
interference
with the state witness can be reduced by appropriate
bail conditions. I am satisfied that, with appropriate bail
conditions the
risk of likelihood of intimidation of the witnesses,
in particularly the complainant, can be restrained.
37.
The learned magistrate held that the appellant posed a likelihood to
evade trial if released
on bail given the life imprisonment sentence
if he were to be found to have committed the offence. The reason for
this finding
is that –
‘
because of the
possible life sentence if convicted, temptation is always there to
evade a trial.’
[15]
Under
cross-examination, it was put to state witness, Sergeant Mgobhozi,
that the appellant is not a flight risk who is likely to
evade trial.
Before the question was responded to by Sergeant Mgobhozi, the
learned magistrate interjected, stating that,
“
I
do not know why you even put that. It is a waste of time, it is not
her evidence. It is not disputed that he is not a flight risk.”
[16]
The
finding of likelihood to evade trial, where there was no evidence
presented to that effect, lends itself to miscarriage of justice.
Prudent adjudication should have prevailed to allow the question put
to the witness, bearing in mind that the onus was on the appellant
to
satisfy the court that, exceptional circumstances existed which in
the interest of justice warrant the appellant to be released
on bail.
The learned magistrate was wrong in his finding that the appellant
was likely to evade trial.
38.
I am satisfied that the decision of the court aquo was wrong, in that
regard I shall proceed
to give the decision which the court aquo
should have given.
40.
The appellant co-operated with the police and handed himself to the
police, leading to his
arrest at the police station. He has no
previous convictions and has no pending cases. He is 60 years old,
gainfully employed with
11 children. He has no interest beyond the
borders of South Africa, has lived all his life at Matimatolo area
outside Greytown,
he is unlikely to evade trial. Counsel for the
state submitted that a bail amount of R10 0000.00 and a prohibition
to enter Greytown
would be appropriate to ensure that the interests
of justice are protected.
41.
Having considered the circumstances pertaining to the appellant and
the evidence presented
at the court aquo, I am satisfied that the
appellant has established the existence of exceptional circumstances
which in the interest
of justice, permit his release on bail pending
trial.
42.
In the results the following order hereby issues, namely:-
(a)
The bail appeal succeeds, and the order of the court below is set
aside and replaced with
the following order:
(b)
The appellant is granted bail in the sum of R10 000.00 subject to the
following conditions:
(i)
The appellant is prohibited from entering Greytown, unless he is
required to
attend court in this matter.
(ii)
The appellant is prohibited to make contact, directly or indirectly
with the complainant
and/or with the complainant’s grandmother.
(iii)
The appellant is to report at Kranskop police station twice a week,
every Tuesday and
Friday between 6am and 6pm.
(iv)
Should he change his current address, the appellant must inform the
investigating officer.
(v)
The appellant is ordered to attend his trial on the given date and on
subsequent days
not later than 8h30am and to remain in attendance
until this matter is finalized or he is excused by the court.
(vi)
The appellant is to remain at his place of residence at Matimatolo
Ntlokwana
AJ
APPEARANCE
DETAILS:
For the Appellant:
Mr. L Barnard
Instructed by:
Bheki Masuku
Attorneys
For the Defendant:
Ms. L Marais
Instructed by:
Director of Public
Prosecutions
Matter heard on:
22 November 2023
Judgment delivered
on:
19 December 2023
[1]
Record pages 148 & 155
[2]
2004(2) SOCR 242(c)
[3]
1979(4) SA 218(D) 220 E-H
[4]
Index 113 – 114
[5]
[1999] ZACC 8
;
1999 (2) SACR 51
(cc) at para 24
[6]
2000 (1) SACR 237
at 241
[7]
Unreported GNP case no A725/12, 6 November 2012
[8]
S v Josephs 2001(1) SACR 659 (c) 667 at 668i
[9]
Nkambule v S unreported GSJ case no. A134/2013 (2 May 2013) para 15
[10]
2000 (2) SACR 371
at 376
[11]
Supra fn 5 at para 56
[12]
See S v Machaba supra fn 7
[13]
Index 113-114
[14]
Supra fn 5
[15]
Index 154
[16]
Index 106