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[2024] ZAFSHC 104
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Sedi v S (A35/2024) [2024] ZAFSHC 104; 2024 (2) SACR 210 (FB) (15 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A35/2024
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
In
the matter between:
PAPIKI
SEDI
Appellant
and
THE
STATE
Respondent
JUDGMENT
BY:
JP
DAFFUE
J
HEARD
ON:
12 April 2024
DELIVERED
ON:
15 April 2024
INTRODUCTION
[1]
Appellant,
a 32-year-old-male, is charged with contravention of a protection
order granted on 10 October 2019 at Ventersburg in
terms of section
17 of the Domestic Violence Act 116 of 1998 (the Act). It is alleged
that on 11 February 2024 he assaulted the
complainant ‘by
hitting the complainant [his girlfriend] with a bottle on the head
and kicking her all over her body whilst
she was lying on the
ground’.
[2]
Appellant
unsuccessfully applied for bail, his bail application having been
dismissed on 5 March 2024 by the honourable magistrate
of
Ventersburg. Dissatisfied with the outcome of the bail
application, appellant served and filed a notice of appeal. On
4
April 2024 a whole bundle of documents, properly bound, paginated and
indexed, containing all relevant documents from the notice
of appeal
– even an affidavit by the appellant - his counsel’s
heads of argument, the charge sheet and the record of
the proceedings
in the court a quo, a total of 103 pages, was served on the Director
of Public Prosecution, Bloemfontein, as well
as the clerk of the
Ventersburg court. The documents were filed with this court on the
same day.
[3]
On
7 March 2024, two days after the refusal of the bail application, the
appellant requested written reasons from the honourable
magistrate,
indicating that he intended to file a bail appeal. No reasons were
furnished as requested. More about this later.
[4]
The
bail appeal was heard on Friday, 12 April 2024. After hearing the
parties’ submissions, judgment was reserved until Monday,
15
April 2024 at 14h15.
GROUNDS
OF APPEAL
[5]
The
appellant relied on no fewer than ten grounds of appeal in his notice
of appeal which was accompanied, contrary to practice,
by an
affidavit dealing with the incomplete transcribed record and
appellant’s submissions pertaining thereto and the grounds
of
appeal. Over and above that, appellant’s counsel provided the
court with detailed heads of argument. I do not intend to
deal in any
detail with any of the grounds of appeal, but shall for the purpose
of considering the appeal refer to some. It is
alleged that the
honourable magistrate erred in the following instances:
5.1
in
finding that the appellant was guilty of committing a serious
offence;
5.2
due
to the love relationship between the appellant and complainant, there
is a likelihood that he would intimidate her and/or assault
her
again, she being a defenceless woman;
5.3
the
appellant breached the protection order issued in terms of the Act;
5.4
the
parties’ minor child did not require financial assistance in
the form of maintenance notwithstanding the common cause
fact that
the appellant is paying R1500 per month towards the maintenance of
the child in accordance with a maintenance order;
5.5
the
complainant did not object to the granting of bail and in final
argument the State prosecutor conceded that bail could be granted,
subject to appropriate conditions;
5.6
that
the appellant would evade trial as he was a flight risk;
5.7
in
emphasising the seriousness and prevalence of offences in terms of
the Act, he over-emphasised the fact that the appellant was
facing a
maximum sentence of 10 years’ imprisonment; and
5.8
he
did not consider all appropriate circumstances in order to find that
the interests of justice permitted the release of the appellant
on
bail.
INCOMPLETE
RECORD
[6]
When
the matter was called at 09h30 on Friday morning, 12 April 2024, Adv
E Ontong on behalf of the State placed on record that
the State
opposed the bail appeal. He also put on record that an improper
record of the bail proceedings was placed before me.
It is recorded
that the bail application was conducted over two days. As a result of
loadshedding, as is apparent from the appellant’s
aforesaid
affidavit, the first day’s evidence was not digitally recorded
and transcribed. The appellant attached the charge
sheet and the
honourable magistrate’s handwritten notes of the evidence led
on day one to his affidavit, as well as the transcript
of the second
day’s hearing.
[7]
I
pointed out to the parties at that stage that the honourable
magistrate failed to furnish the reasons for his decision to the
High
Court on receipt of the notice of appeal. This is a peremptory
provision and I have in the past declined to hear a bail appeal
without the court
a
quo
’s
reasons.
[1]
However, I have also
on occasion proceeded to hear a bail appeal without the court
a
quo
’s
reasons where I was satisfied that full reasons were given in the
judgment refusing bail and also, bearing in mind the
relative urgency
applicable to these kind of proceedings. I requested Adv Ontong to
contact the honourable magistrate telephonically
to find out whether
reliance could be placed on his written notes in respect of the first
day’s bail hearing and why he failed
to furnish reasons as
required by
section 65(3)
of the
Criminal Procedure Act 51 of 1977
.
Consequently, I adjourned until Friday afternoon at 14h15.
[8]
Adv
Ontong sent an email to my secretary after he had an opportunity to
discuss the matter with the honourable magistrate for which
I wish to
thank him. When the matter was called again that afternoon Adv Ontong
reported back, confirming his email correspondence
and stating that
although the honourable magistrate mentioned that he had only drafted
cryptic notes, he had elaborated in more
detail in his judgment on
the issues at hand. I agree that the honourable magistrate dealt with
the evidence presented to him in
much detail. The honourable
magistrate also indicated that he had nothing to add to the reasoned
judgment. Therefore, I accepted
that I could proceed in hearing the
bail appeal.
EVALUATION
[9]
In
light of the authorities, I accept that it is trite law that courts
of appeal’s powers are limited in bail appeals and
no matter
what such court’s own views are, the question to be considered
is whether the court
a quo
misdirected itself materially on the facts or legal principles. Only
in such a case may the court of appeal consider the issue
of bail
afresh. It may also be justified to interfere on appeal when the
court
a quo
did not consider one or more important aspects in arriving at its
decision.
[10]
I
accept that the legislature intended that only courts may consider
bail applications of persons involved in domestic violence
offences.
So-called police bail prior to the first appearance in court is
prohibited. I also accept that the legislature had due
regard to the
seriousness of offences under the Act to such an extent that section
59(1)(a) of the Criminal Procedure Act 51 of
1977 (the CPA) now reads
as follows:
‘
(1)
(a)
An
accused who is in custody in respect of any offence, other than an
offence-
(i)
referred
to in Part II or Part III of Schedule 2;
(ii)
against
a person in a domestic relationship, as defined in
section
1
of the Domestic Violence Act, 1998 (
Act
116 of 1998
); or
(iii)
referred
to in-
(aa)
section
17 (1)
(a)
of
the Domestic Violence Act, 1998;
(bb)
section
18 (1)
(a)
of
the Protection from Harassment Act, 2011 (
Act
17 of 2011
); or
(cc)
…..,
may,
before his or her first appearance in a lower court, be released on
bail in respect of such offence by any police official
of or above
the rank of non-commissioned officer, in consultation with the police
official charged with the investigation, if the
accused deposits at
the police station the sum of money determined by such police
official.’
[11]
Section
60(11)(c) of the CPA reads as follows:
‘
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence -
(a)
…
(b)
…
(c)
contemplated
in section 59 (1)
(a)
(ii)
or (iii), 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 the interests of justice permit his or her release.
’
(emphasis added)
The
mere fact that offences relating to domestic violence are dealt with
in the same subsection as the most serious offences mentioned
in
Schedules 5 and 6 is confirmation of the seriousness with which the
legislature considers such offences. As highlighted, the
applicant in
a bail application relating to a domestic violence offence should
adduce evidence which satisfies the court that the
interests of
justice permit their release on bail.
[12]
This
should also be read with section 60(11B)(a)(iii) of the CPA which
reads as follows:
‘
(11B)
(a)
In
bail proceedings, the accused, or his or her legal adviser, is
compelled to inform the court whether - …
(i)
…
(ii)
…
(iii)
an
order contemplated in
section 5
or
6
of the
Domestic Violence Act,
1998
,
section 3
or
9
of the Protection from Harassment Act, 2011, or
any similar order in terms of any other law, was issued by a court to
protect the
person against whom the offence in question was allegedly
committed, from the accused, and whether such an order is still of
force;
and
(iv)
….’
[13]
In
S
v Dlamini
[2]
,
Kriegler J, writing for a unanimous Constitutional Court bench, made
the following important observations:
‘
[11]
Furthermore,
a bail hearing is a unique judicial function. It is obvious
that the peculiar requirements of bail as an interlocutory
and
inherently urgent step were kept in mind when the statute was
drafted. Although it is intended to be a formal court
procedure, it is considerably less formal than a trial. Thus,
the evidentiary material proffered need not comply with the
strict
rules of oral or written evidence. Also, although bail, like
the trial, is essentially adversarial, the inquisitorial
powers of
the presiding officer are greater. An important point to note
here about bail proceedings is so self-evident that
it is often
overlooked.
It is that there is a
fundamental difference between the objective of bail proceedings and
that of the trial. In a bail application
the enquiry is not
really concerned with the question of guilt. That is the task
of the trial court. The court hearing
the bail application is
concerned with the question of possible guilt only to the extent that
it may bear on where the interests
of justice lie in regard to bail.
The focus at the bail stage is to decide whether the interests of
justice permit the release
of the accused pending trial; and
that
entails in the main protecting the investigation and prosecution of
the case against hindrance.’
(emphasis added)
[14]
When
one reads the filed documents, it appears as if the honourable
magistrate at a stage believed that he was involved in a criminal
trial and not a bail application. He even recorded the following in
his handwriting after the parties’ closing arguments:
“
Guilty
”.
In the process he failed to duly consider the purpose of bail. I
shall henceforth refer to the honourable magistrate
as ‘the
court
a quo
’.
[15]
In
my view the court
a quo
misdirected itself materially both on the facts and the legal
principles. Clearly, it failed to consider the main issue, to wit
‘protecting the investigation and prosecution of the case
hindrance’ as stated by Kriegler R in the quoted
dictum
.
This aspect could have been catered for in appropriate bail
conditions, but the court
a quo
failed to consider this. Whilst ignoring the purpose of bail, the
court
a quo
considered the appellant guilty as if it was sitting as a trial
court. Even so, the court
a quo
did not consider whether the trial court might eventually, and even
after a verdict of guilty, decide to impose a fine as an alternative
to direct imprisonment.
[16]
The
court
a quo
became unnecessarily emotional, even recording in the judgment that
‘this case will go to the regional court where you can
be
sentenced to 10 years’ imprisonment …’. It then
continued as follows:
‘
But
the Court is trying, get the message out, should the Department of
Justice get it out, should the National Prosecuting (sic)
get it out,
should the radio, should the journalist, to the newspapers get this
news out please let’s reduce domestic violence
and maintain our
anger.’
The
court
a quo
mentioned this without considering that the
parties have a 10-year-old child and that they were therefore in a
relationship for
about 11 years. Although the complainant obtained a
domestic violence interdict in 2019, it is apparent that they still
stayed
together thereafter and continued with their love
relationship. It appears as if the complainant moved back to her
parental home
at the instructions of the appellant only very
recently.
[17]
Vague
evidence was tendered that the appellant assaulted and/or threatened
the complainant once, or perhaps twice, before the present
incident
during the whole period of their relationship. The court
a
quo
failed to consider that the
complainant made it clear that she did not want the appellant to
remain in custody. In my view, any
attack by a male on a female
should be severely criticised and appropriate sentences should be
imposed when such persons are convicted.
I have said in many
judgments that there are too many male persons in this country that
have no regard for the rights of females,
bearing in mind the
thousands of murders, rape cases and domestic violence offences
occurring annually. The President of our country
has also spoken out
about this several times, but to no avail. But each and every case
must be considered on its own merits.
[18]
The
court
a quo
stated that the appellant was ‘facing seriously (sic)
allegations of assault imposed on her [the complainant], in a very
gruesome manner.’ On her version she was hit with a bottle over
the head and also kicked when she was lying down on the ground.
No
doubt this appears to be a serious assault. However, no medical
evidence was presented to the court
a
quo
and it could not be found as
did, that a gruesome attack had taken place. That will be for the
trial court to decide eventually.
[19]
The
complainant indicated that her child would survive on the child grant
that she is receiving. On a question by the court
a
quo
she
inter
alia
said that she did not depend on
the appellant’s money (the maintenance payments of R1500 per
month for the child) and that
she and her child will be ‘able
to eat’. These answers followed upon a certain line of
questioning by the court
a quo
which is difficult to understand. The complainant would never
approach the maintenance court if she did not need money for the
upbringing of her child and that court would never have granted an
amount of R1500 per month maintenance if a need had not been
proven.
In the process the court
a quo
neglected to consider section 28(2) of the Constitution which
stipulates that ‘(a) child's best interests are of paramount
importance in every matter concerning the child.’ If the
appellant is kept in custody pending a criminal trial that may take
months to be finalised, he would surely be dismissed by his employer.
In such case the child will have to forfeit maintenance.
[20]
The
appellant is a firefighter in the employment of the Matjhabeng
Municipality and earns about R21 000. He has been supporting
his
child, but will clearly not be able to continue if he is to be
dismissed by his employer.
[21]
The
complainant and the appellant shared a house in Ventersburg, but she
recently moved to her parental home. The appellant has
a fixed
residential address at 275 Thabong, Welkom and is employed by the
Matjhabeng Municipality. He should be prohibited from
entering the
Ventersburg magisterial district, unless required for court purposes
and shall also be confined to the Welkom magisterial
district pending
finalisation of the criminal hearing. In requiring that there should
be no contact between the appellant and the
complainant prior to the
finalisation of the criminal case, one of the main purposes of
granting bail will be achieved.
[22]
The
aim of bail is
inter alia
to minimise the accused’s freedom prior to his conviction and
sentence. The court
a quo
did not recognise that. In conclusion, I am satisfied that no balance
was struck between the interests of society,
ie
t
hat the appellant should stand his
trial without any interference with the administration of justice on
the one hand and his liberty
of the other hand.
ORDER
[23]
The
following orders are issued:
1.
The
appellant’s appeal against the dismissal of his bail
application is upheld.
2.
The
order of the court
a quo
is set aside and substituted with the order set out as follows:
‘
2.1
Bail
is granted to the applicant in the amount of R2000.00 (two thousand
rand) on the following conditions:
2.1.1
he
shall report to the Thabong police station twice a week,
ie
on Mondays and Fridays between 06h00 and 17h00, the first day of such
report to be on Friday, 19 April 2024;
2.1.2
he
shall attend his trial and all postponements thereof and remain in
attendance until excused and finally until a verdict is given
in
respect of the charge to which this case relates;
2.1.3
he
shall not communicate in any manner whatsoever with the complainant,
ie
personally, or by means of contacting her or communicating with her
via WhatsApp or cellphone, until finalisation of the criminal
case
against him;
2.1.4
he
shall not make contact with any of the State witnesses and shall not
interfere with any of them and/or intimidate any of these
persons,
including the complainant;
2.1.5
he
is forbidden from visiting the magisterial district of Ventersburg
where the complainant resides until finalisation of the criminal
case
against him, save for attending court on those days that his
attendance is required in the Ventersburg Magistrate’s
Court;
2.1.6
he
shall not leave the magisterial district of Welkom without the prior
written approval of the Investigating Officer and in order
to obtain
such permission, he shall provide a valid itinerary of his movements
and keep the Investigating Officer updated at all
times as to his
whereabouts;
2.1.7
the
applicant’s residential address is recorded as 275 Thabong,
Welkom and should he change that address, he should notify
the clerk
of the court, Ventersburg and the Investigating Officer of such
change within 24 hours; and
2.1.8
a
copy of this order with the bail conditions shall be served on the
applicant personally by the Investigating Officer before his
release
on bail and a copy of such written acknowledgment by the applicant,
certifying that he is fully conversant with the conditions
of his
release on bail, shall be filed as part of the record with the clerk
of the Ventersburg Magistrate’s Court.’
JP
DAFFUE J
On
behalf of the appellant:
Adv F Kunatsagumbo
Motaung
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv E Ontong
DPP
Bloemfontein
[1]
S
v Sesing
(A11/2019)
[2019] ZAFSHC 9 (25 January 2019) with reference to section 65(3) of
the Criminal Procedure Act 51 of 1977.
[2]
S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) at para
[11]