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[2023] ZAECMHC 15
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Nkqayi and Others v S (CA&R 121/2022) [2023] ZAECMHC 15 (28 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO: CA&R 121/2022
In
the matter between:
SICELO
ABEL
NKQAYI
1
st
APPELLANT
ZAMIKHAYA
SONGCA
2
nd
APPELLANT
BONGANI
CIKOLO
3
rd
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
DAWOOD
J:
[1]
Introduction
The
appellants herein appealed against the decision of the learned
magistrate`s refusal of bail alleging inter alia in their grounds
of
appeal: -
(a) That there was no
hope of a conviction as there was no evidence to establish that the
appellants unlawfully and intentionally
made a misrepresentation
which caused prejudice the Eastern Cape Development Corporation
(“herein after referred to as ECDC”).
(b) That the respondent
did not pin its faith on a possibility of evading trial in resisting
the appellants release on bail as the
appellants had handed
themselves over to the police.
(c) There was no
evidentiary material upon which a conclusion could be reached that
the appellants sought to endanger the safety
of the public or attempt
to intimidate and interfere with witnesses as witnesses had already
made statements, investigations were
complete and the matter was
ready for trial, no intimidation was reported on the police.
(d) There was no evidence
that they had supplied false information to the police.
(e)
There was no credible evidence to show they would disturb public
order or undermine public peace.
(f)
The offence did not involve the public at large but only ECDC.
(g) The court based its
judgment on rumours regarding the police vehicles that was not
tendered as evidence and was not a ground
for opposition to bail.
(h) The court also
considered the presence of the police during the proceedings as a
factor that the appellants posed a danger to
the public.
(i) The evidence before
court demonstrated that the interests of justice justify the grant of
bail and the decision of the court
a quo was arrived at wrongly.
(j) The magistrate relied
on the state`s contention regarding the strength of the state`s case.
[2]
Magistrate`s Judgment
2.1
In considering whether or not the appellants’ grounds of appeal
and their argument
has any merit it is first necessary to have regard
to the judgment of the learned magistrate.
2.2
(a)
The learned magistrate in his judgment
commenced by indicating that the accused were all charged with a
Schedule 5 offence.
(b)
He
then stated that they were all married men with children and had
means of living.
(c)
He
stated that he would not dwell on their personal circumstances
because they were almost the same.
(d) He then went on to
set out where the
onus
lies and what the considerations were.
(e) This demonstrates
that he: -
(i) was aware that the
applicants were charged with a schedule 5 offence;
(ii) did have regard,
although not fully set out in his judgment, to the personal
circumstances of each of the accused;
(iii) was aware that the
onus
rested upon the accused to adduce evidence to satisfy the
court that the interest of justice permits their release on bail.
(iv) having regard to the
circumstances under which the interest of justice does not permit the
release from detention of the accused.
(v) was aware that the
interest of justice caters for the criminal justice system as well as
the well-being of the applicants and
both factors have to be weighed
equally.
(vi) that the applicants
had to convince the court that the interest of justice permits their
release on bail.
(f)
He then went on to consider the evidence stating that the evidence
led demonstrated:
(i) that the applicants
occupy more than one property.
(ii) that they have no
immovable property of their own.
(iii) applicant one had a
passport which is lost.
(iv) applicant three has
got his own passport;
(v) they are all family
men;
(vi) that the applicants
stated that their children will suffer if they are detained any
longer.
(vii) the applicants
before court have a pending matter.
2.3
The learned magistrate however went on to say that: -
(i)
the state alleged that the case is very strong against the
applicants;
(ii)
that they are sure of a conviction;
(iii)
that the minimum sentence could be passed by the trial court;
(iv) this assertion by
the state would in his view infuse a fear to the applicants not stand
trial and it would be normal for any
person to try to escape or flee;
(v) the applicants before
court have a pending matter;
(vi) he then seems to
consider that there is a likelihood of them endangering the safety of
the public or will commit a schedule
1 offence or that if they were
released on bail they will attempt to evade trial.
(vii) he re-iterates that
because of the possible sentence, he is sure anyone can attempt to
evade trial.
(viii) he then goes on to
quote the provisions of subsection (d) and (e) and relies on the
activities of the supporters of the applicants
in protesting outside
court and tearing the sails of the police van and making noise
outside court, stating that the supporters
were threatening the state
so that the applicants are released not by the law but by their own
liking.
(ix) He appears to be
suggesting that the actions of their supporters in their protest
action to have the accused released are undermining
and jeopardising
the objectives of the proper functioning of the criminal justice
system including the bail system.
(x) He also appears to be
suggesting that the supporters action creates the likelihood that the
release of the accused will disturb
the public order or undermines
the public police or security.
(xi) He then concluded
that as such they have not passed the threshold which is required by
law that the interest of justice permits
their release on bail.
2.4
(a) It is self-evident that the actions of the applicants` supporters
cannot without more
be attributed to the applicants.
(b) No evidence was led
to say that the supporters were instigated by the applicants to act
in the manner they did.
(c)
In any event no evidence regarding their conduct was tendered in
court save to say they were protesting outside court.
(d) No evidence as
correctly pointed out by the appellants’ counsel was led to the
effect that they had damaged a police van.
(e) Furthermore as
correctly pointed out by the appellants in their notice of appeal,
the conduct of the appellants’ supporters
outside court was not
a basis for opposing bail.
(f) There was accordingly
no legitimate reason for the learned magistrate to consider the
actions of the applicants’ supporters
outside court as a basis
to refuse bail.
(g) This was correctly
conceded by the state.
(h) However, it was
argued that this was not the sole basis for the magistrate refusing
bail.
(i) It was correctly
argued by the applicant`s counsel that the learned magistrate failed
to independently assess the evidence to
determine whether or not the
state indeed had a strong case.
(j) The learned
magistrate further failed to have regard to the peculiar
circumstances of the applicants in this case to determine
on the
facts whether or not the applicants would evade trial.
(k) The learned
magistrate generalised by saying “
because of the possible
sentence, I am sure anyone can attempt to evade trial.
”
(l) The learned
magistrate was given an opportunity to furnish reasons for his
judgment but stated that he has no other reasons
to refuse bail as
the reasons were accompanying the judgment in the court record,
despite being served with the notice of appeal
indicating the
challenges.
2.5
In this case it is evident that the learned magistrate has
misdirected himself in the evaluation
of facts and the application of
the relevant legal principles by inter alia: -
(a) failing to set out
facts that he considered to demonstrate the strength of the state`s
case, thereby failing to make an independent
finding regarding the
strength or weakness of the state`s case;
(b) failed to state
whether or not there was a likelihood on his assessment of the
evidence that the applicants were likely to commit
a schedule 1
offence.
(c) failed to set out the
facts that led him to conclude that these particular applicants were
flight risks;
(d) failed to state how
the action of the supporters could be attributed to the applicants
and could lead to the applicants undermining
the objectives of proper
functioning of the criminal justice system, including the bail
system;
(e) further failed to
state how there was a likelihood that the release of the accused
would disturb public order or undermine public
peace and security
having regard to the evidence before him. He again appears to have
based the conduct of the supporters as being
a factor that would
disturb public peace and security without stating how this conduct
can be attributed to the applicants or what
evidence was led to
establish this factor.
[3]
Legal position
3.1
In order to determine whether or not to set aside the decision of the
learned magistrate
one has to have regard to the applicable legal
position.
3.2
It was common cause that the charges fall in the category of offences
listed in schedule
5 of the Criminal Procedure Act 51 of 1977 (“Act
51 of 1977”).
3.3
The
onus
accordingly rested upon the applicants to establish
on a balance of probability that it was in the interest of justice to
release
them on bail.
3.4
Section 65(4) provides:
“
the
appeal court shall not set aside the decision against which the
appeal is brought, unless the appeal court is satisfied that
the
decision was wrong.”
3.5
The decision in this instance was that their application for bail is
dismissed.
3.6
The powers of a court sitting in an appeal in terms of the
provisions of Section 65 of the Criminal Procedure Act have been
crystallised
as follows through various authoritative pronouncements
by our courts:
“
An appeal court
shall not substitute its own decision for that of the court a quo,
unless it is of the view that the magistrate
has misdirected himself
either in his evaluation of the facts or the application of the
relevant legal principles;
[1]
3.7
The appeal court will undertake its own analysis of the evidence and
on the basis thereof
decide whether or not the court a quo had made
the correct decision regarding the discharge of the onus in terms of
section 60(11)
of the
Criminal Procedure Act.”
[2]
3.8
In this case it is evident that the learned magistrate had regard to
irrelevant factors
in assessing whether or not to grant the
applicants bail and he further failed to evaluate the evidence to
arrive at an independent
conclusion regarding inter alia the strength
of the state`s case and the other factors necessary to determine
whether or not the
applicants had discharged the
onus
resting
upon them.
3.9
In the circumstances it is accordingly incumbent upon this court to
undertake its own analysis
of the evidence and on the basis thereof
decide whether or not the court
a quo
has made the correct
decision regarding whether or not the applicants had discharged the
onus resting upon them to establish on
a balance of probabilities
that their release on bail was in the interest of justice.
3.10 The
issue to be determined is whether or not the magistrate`s decision
being the refusal of bail was wrong after
evaluating the evidence
presented and applying the relevant legal principles and authorities.
3.11
(i)
Section 60(11)
(b) of the
Criminal
Procedure Act provides
that an accused person charged with an offence
referred to in schedule 5 shall be detained in custody unless the
accused person
adduces evidence which satisfies the court that the
interest of justice permits his or her release.
(ii) In deciding whether
or not the interest of justice permits the release of an accused on
bail, the court must inter alia have
regard to the considerations
mentioned in paragraphs (a) to (e) of
section 60(4).
(iii) In terms of that
section the interest of justice would not permit the release of an
accused person on bail if any one or more
of the grounds mentioned
therein are established. The grounds are listed as follows: -
“
(a) Where there is
the likelihood that the accused, if he or she were released on bail,
will endanger the safety of the public or
any 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 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
of the proper functioning of
the criminal justice system, including the bail system;
(e) Where in exceptional
circumstances there is the likelihood that the release of the accused
will disturb public order or undermine
public 3 peace or security”
(iv)
The
provisions above were considered and interpreted by Hefer J in
S
v Barber
[3]
where
he held,
“
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 for bail. 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 exercised
that discretion wrongly.”
(v)
In
S
v Porthen and Others
[4]
Bins-Ward
AJ focuses on the appeal court’s right to interfere with the
discretion of the court of first instance in refusing
bail when he
held,
“
When
a discretion… is exercised by the court
a
quo
, an
appellate Court will give due deference and appropriate weight to the
fact that the court or tribunal of first instance is
vested with a
discretion and will eschew any inclination to substitute its own
decision unless it is persuaded that the determination
of the court
or tribunal of first instance was wrong.”
(vi) In
S
v Dlamini
[5]
the Constitutional
Court held as follows:
“
T
here
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.”
The
Court held further that:
“
If
one were to read the opening sentence of ss (4) without regard to the
provisions of ss 60(1)
(a)
and
60(9) of the Act and s 25(2)
(d)
of
the Constitution of the Republic of South Africa Act 200 of 1993 (the
interim Constitution), it could possibly be understood
as a mandatory
injunction to a judicial officer to conclude that something is or is
not in the interests of justice, irrespective
of the officer's own
conclusion. That certainly would constitute an objectionable deeming
provision. But one must read the provisions
together. Subsections (4)
- (9) are not intended as deeming provisions at all. What those
subsections do is to list, respectively,
the potential factors for
and against the grant of bail to which a court must pay regard.
Neither ss (4) nor ss (9) commands a
court to come to an artificial
conclusion of fact. On the contrary, courts are told that, if
they
find one or more of the factors listed in s 60(4)
(a)
-
(d)
to
have been established, a finding that continued detention is in
the interests of justice will be justified
.
Put differently, judicial officers are pointed towards categories of
factual findings that could ground a conclusion that bail
should be
refused. By like token a court is not enjoined to accord decisive
weight to the one or other or all the personal factors
mentioned in
ss (9). In short, the Legislature was providing guidelines as to
what are factors for, and what are factors against,
the grant of
bail. Whether and to what extent any one or more of such pros or cons
are found to exist and what weight each should
be afforded is left to
the good judgment of the presiding judicial officer. Such guidelines
are no interference by the Legislature
in the exercise of the
Judiciary's adjudicative function; they are a proper exercise by the
Legislature of its functions, including
the power and responsibility
to afford the Judiciary guidance where it regards it as necessary.
[6]
Criterion
of the 'interests of justice'
In
s 60(4), (9) and (10) the drafters must have contemplated something
closer to the conventional 'interests of society' concept
or the
interests of the State representing society. That must also be
the sense in which 'the interests of justice' concept
is used in
ss (4). That subsection actually forms part of a functional unit with
ss (9) and (10). Between them they provide the
heart of the
evaluation process in a bail application,
ss
(9) being predominant
.
If it is read first and 'the interests of justice' bears the same
narrow meaning akin to 'the interests of society' (or the interests
of justice minus the interests of the accused), the
interpretation of the three subsections falls neatly into place. In
deciding
whether the interests of justice permit the release on bail
of an awaiting trial prisoner, the court is advised to look to the
five broad considerations mentioned in ss (4)
(a)
-
(e)
,
as detailed in the succeeding subsections. And it then has to do the
final weighing up of factors for and against bail as required
by ss
(9) and (10). Section 60(4), (9) and (10) should therefore be read as
requiring of a court hearing a bail application to do
what
courts have always had to do, namely to
bring
a reasoned and balanced judgment
to bear in an
evaluation
in which
the liberty
interests
of the arrested person are given the full value accorded by the
Constitution
.
In this regard it is well to remember that s 35(1)
(f)
itself
places a limitation on the rights of liberty, dignity and freedom of
movement of the individual
.
In making the evaluation, the arrested person therefore does not have
a totally untrammelled right to be set free. More pertinently
than in
the past, a court is now obliged by s 60(2)
(c)
,
(3) and (10) to play a pro-active role and is helped by ss (4) - (9)
to apply its mind to a whole panoply of factors potentially
in favour
of or against the grant of bail.
[7]
Use
of factors unrelated to trial in ss (4)
(a)
and
(5)
Section
35(1)
(f)
presupposes a deprivation of freedom - by arrest
- that is constitutional. This deprivation is for the limited purpose
of
ensuring that the arrested person is duly and fairly tried. But s
35(1)
(f)
neither expressly nor impliedly requires that,
in considering whether the interests of justice permit the release of
that
detainee pending trial, only trial-related factors are to be
taken into account. The broad policy considerations contemplated by
the 'interests of justice' test can, in that context, legitimately
include the
risk
that
the detainee will endanger a
particular individual or the public at large
. Less obviously, but
nonetheless constitutionally acceptable, a risk that the detainee
will commit a fairly serious offence can be taken into account
.
The important proviso throughout is that there has to be a
likelihood, ie a probability, that such
risk will materialise
.
A possibility or suspicion will not suffice. At the same time, a
finding that there is indeed such a likelihood is n
o more than a
factor
, to be weighed
with all others
, in deciding what
the interests of justice
are. That is not constitutionally
offensive. Nor does it resemble detention without trial, the
reprehensible institution really
targeted when one speaks of
preventive detention.”
(vii)
In
S
v Pineiro and Others
[8]
Frank J held as follows:
“
The
overriding principles guiding an application of this kind
are succinctly set out by Du Toit
et al
in
Commentary
on the
Criminal Procedure Act
and
, in his notes to
s 60
thereof at 9-8B, the following is stated:
'In
the exercise of its discretion to grant or refuse bail, the court
does in principle address only one all-embracing issue: Will
the
interests of justice be prejudiced if the accused is granted bail?
And in this context it must be borne in mind that, if an
accused is
refused bail in circumstances where he will stand his trial, the
interests of justice are also prejudiced.
Four
subsidiary questions arise. If released on bail, will the accused
stand his trial? Will he interfere with State witnesses or
the police
investigation? Will he commit further crimes? Will his release be
prejudicial to the maintenance of law and order and
the security of
the State? At the same time the court should determine whether any
objection to release on bail cannot suitably
be met by
appropriate conditions pertaining to release on bail. (See
generally
S v Bennett
1976 (3) SA 652
(C).)'
(viii)
In
S
v Dlamini
[9]
Kriegler stated as follows:
"[49]
… the manner in which a court enquiry into bail is to be
conducted, remain substantially unaltered. It remains
a unique
interlocutory proceedings where the rules of formal proof can be
relaxed and where the court is obliged to take the initiative
if the
parties are silent; and the court still has to be proactive in
establishing the relevant factors. More pertinently, the
basic
enquiry remains to ascertain where the interests of justice lie. In
deciding whether the interests of justice permit the
release on bail
of an awaiting trial prisoner, the court is advised to look to the
five broad considerations mentioned in paras
(a)
to
(e)
of
ss (4), as detailed in the succeeding subsections. And it then has to
do the final weighing up of factors for and against
bail as required
by ss (9) and (10)."
(ix)
In
S v Schietekat
1998 (2) SACR 707
(C) at 713
Slomowitz AJ stated:
"Bail
proceedings are
sui generis
. The application may be
brought soon after arrest. At that stage all that may exist is a
complaint which is still to be investigated.
The State is thus
not
obliged in its turn to produce evidence in the true sense
. It is
not
bound by the same formality
. The court may take account of
whatever information is placed before it in order to form what is
essentially an
opinion or value judgment
of what an
uncertain
future holds
. It must prognosticate. To do this it must
necessarily have regard to whatever is put up by the State in order
to decide whether
the accused has discharged the
onus
of
showing that 'exceptional circumstances exist which in the interests
of justice permit his release'.
(x)
In
S
v Lupuwana
,
[10]
Kahla AJ stated:
“
As
to whether there is a possibility that the appellant may be acquitted
cannot be denied but the probabilities of a person being
acquitted on
trial will depend on the evidence to be adduced at the trial. This
Court is not concerned with proving the guilt or
innocence of the
appellant, it only looks at pointers in the direction to arrive at a
decision as to whether it can be said that
the State's case is so
weak or the State has failed to submit a
prima facie
case
against the accused.”
(xi)
In
Mathebula
v S
[11]
Heher JA held as follows although dealing with a schedule 6 offence:
“
But
a state case
supposed
in advance to be frail may nevertheless sustain proof beyond a
reasonable doubt when put to the test
.
In order successfully to
challenge
the merits of such a case in bail proceedings an applicant needs to
go further
:
he must
prove
on a balance of probability that he will be acquitted of the
charge
:
S
v Botha
2002
(1) SACR 222
(SCA)
at 230h, 232c;
S
v Viljoen
2002
(2) SACR 550
(SCA)
at 556c. That is no mean task, the more especially as an innocent
person cannot be expected to have insight into matters
in which he
was involved only on the periphery or perhaps not at all. But the
state is not obliged to show its hand in advance,
at least not before
the time when the contents of the docket must be made available to
the defence; as to which
see
Shabalala
& Others v Attorney-General of Transvaal and Another
[1995]
ZACC 12
;
1996
(1) SA 725
(CC).
Nor is an attack on the prosecution case at all necessary to
discharge the onus; the applicant who chooses to follow
that route
must make his own way and not expect to have it cleared before him.
Thus it has been held that until an applicant has
set up a prima
facie case of the prosecution failing there is no call on the state
to rebut his evidence to that effect:
S
v Viljoen
at
561f-g.”
[4]
Facts of the case and evidence led
4.1
In determining whether or not the magistrate`s decision was correct
based on inter alia
the legal principles and authorities set out
above one has to have regard to the evidence led in this matter that
encompasses both
the personal circumstances of the applicants and the
evidence led in respect of the merits.
4.2
Personal circumstances of the applicants
(i) The first appellant
inter alia testified with regard to his personal circumstances as
follows: -
(a) He was 44 years of
age;
(b) He resided at 1[…]
O[...] Street, Fortgale since May 2022 (this address was conceded by
him to belong to the complainant
in his pending trespassing and
housebreaking charge);
(c) That he is
self-employed owning A[...] N[...] F[...] S[...] and A[...] N[...]
T[...] P[...];
(d) He earns R15 000
from each company per month from being the director of these two
companies;
(e) He is also a healer
and earns about R25 000 per month from donations to him as a
healer;
(f) He is a pastor and
does charity work;
(g) He has five children,
two from his first wife and three from his second wife;
(h) his first wife is
unemployed and his second wife works at his f[...] s[...].
(i) His eldest child
receives funding from NSFAS as he is at university but he pays for
his books;
(j) He pays for school
fees for three of the others and the youngest is only 4 months old;
(k) He owns livestock, 13
cows, 76 sheep and 18 goats. He is not certain of the numbers as
there is a person who takes care of his
livestock and his elder
brother also assists in taking care of them at D[...] V[...].
(l) If he is released on
bail he would be able to continue his businesses and church
responsibilities and support his children whereas
if he remained in
custody his companies would close and his employees would be left
jobless.
(m) His initiates would
not be able to complete their initiation training.
(n) His children would
not go to school because he takes care of their transport. The person
who takes care of his livestock will
stop working because he will not
be paid.
(p) His livestock would
be stolen when his brother goes looking for jobs.
(q) He would not be able
raise funds for his private attorney.
(ii) The second appellant
stated inter alia the following as his personal circumstances: -
(a) He is 39 years of
age;
(b) He is married and had
two adopted children aged five and two and he also takes care of his
mother and nephew and nieces;
(c) His wife is
unemployed;
(d) He has a fixed
address in Southridge and Sibangweni and at his ancestral home;
(e) He takes care of the
minor children financially;
(f) He is a businessman
doing pig farming and earns R17 000 to R18 000 per month in
2018;
(g) He wants to be
released on bail because his mother, since she heard of his
incarceration her diabetes is rising very high;
(h) His businesses are
failing and his wife and children are suffering;
(i) The child that is
schooling is having difficulty because he was the one who from time
to time took the child to school;
(j) His wife tells him
that the child is saying a lot wanting his father;
(k) His mother`s health
is up and down and deteriorating because she has lost hope now that
he is incarcerated;
(l) His child was
supposed to start school but because of the operation (the search and
seizure of documents) he lost the child`s
birth certificate;
(m) He wants to be
released so that he can properly prepare for trial or pay for his
private.
(iii)
Third appellant stated inter alia the following as his personal
circumstance: -
(a) He is 49 years of
age, married with 2 children aged 16 and 12 years, doing grade 9 and
5, eldest at a private school and he
pays the school fees. He pays
R5200 per month in respect of the eldest and R3500 in respect of the
younger one. He pays rental
of R11500 in respect of the place they
are renting in KwaZulu Natal.
(b) His wife is also
studying and he pays for her studies as well and she resides with the
children in Durban.
(c) He then stated that
he is estranged from his wife and his children are unaware of this.
(d) He could not recall
the address he resided at in Fortgale and requested permission to ask
his wife then said it was at 9 Terrance
Lowry Street, Fortgale since
2018.
(e) He stated that he
also has an address in Nkululekweni and in the rural areas Nquba at
Ngqeleni and his mother also has a home
at Ziphunzana Location in
Libode.
(f) He does not own any
of his residences.
(g) He works as a
contractor and owns his security company S[...] C[...] and S[...]
S[...] and C[...] S[...]
(h) The company generates
R65000 to R68000 per month.
(i) He is the sole
director of S[...] C[...]and there is no one able to manage
everything so the employees would not be paid as
the company cannot
operate without his presence.
(j) There is no one who
would be able to pay his children`s school fees and rentals if he was
not granted bail.
(k) He has a previous
conviction of housebreaking. He had been arrested in 2009 but was
sentenced in 2012.
(l) He has a passport and
he has a brother living in London.
(m) He has not left the
country in the past 5years.
(n) His family and
employees and their children will suffer if he is not released.
(o) His elder child is
seeing a psychologist and his condition will be worsened if he knew
that his father was in prison.
(p) He has a sickly
elderly mother.
4.3
Evidence led on the merits
4.3.1 (i)
First Applicant when questioned regarding the merits of the matter
inter alia stated: -
(a) That he was told on
the day of his arrest when he presented himself at PRD building that
he was being charged with fraud and
theft.
(b) That he met with
ECDC`s new board as the National Treasurer of Public Assets Community
Based Tenants and Owners Association
(hereinafter referred to as
PACTOA).
(c) He denied receiving
any monies personally which is rental due to ECDC in the stead of
ECDC.
(d) It was put to him
that PACTOA was in control of ECDC property and the preamble was read
to him from the memorandum of agreement
which reads as follows, when
he said that the agreement was only in respect of flats and not other
properties:
“
We
have concluded that as PACTOA members as we occupy ECDC properties we
will hand over those properties to ECDC as there is a new
executive
who can sit and listen to us. So after we hand over those properties
we will sign new leases
.”
[12]
He elected to disclose
his defence in this regard at trial.
(e) He failed to state
exactly what would prevent his second wife from running his business
as she is employed there. Her not being
a director clearly is not a
cogent reason to say she is unable to run his business.
(f) He admitted being in
occupation of the very property that was the subject matter of the
pending criminal trial in respect of
trespassing and housebreaking
and in fact furnished that address to the police. He conceded that it
belonged to the complainant,
in the pending criminal matter against
him.
(g) It was put to him on
the basis of that that it was likely that he would interfere with
state witnesses since he was occupying
the house of the complainant
in another matter, the very house that formed the subject matter of
the charges against him in that
matter.
(h) It was also put to
him that on that basis he had no fixed address as he had only
furnished the police with that address that
belonged to the
complainant, Mr Nkhola and not to him.
(i) It was put to him
that the voice note was circulated on behalf of all of them saying
they were going to Dubai when they became
aware of the intended
arrest. It was stated that for this reason he was also considered a
flight risk. He initially denied that
the second applicant had the
right to circulate the voice note and the second applicant would
answer but denied that he was a flight
risk then said that on most
things Mr Songca had or was given the authority as the spokesman
especially on issues involving the
police to speak on their behalf.
(j) He stated to his
knowledge PACTOA does not collect rentals from persons occupying
buildings belonging to ECDC.
(k) When he was
questioned about receipts issued by PACTOA his response was that
there was nothing that showed that it was in respect
of ECDC property
nor were persons’ names on it.
(l) He, however declined
to state what the monies were paid to them for saying he would state
his position when the matter came
to trial.
(m) It was put to him
that the investigating officer would testify that these monies were
rental monies he collected from the occupants
and / or residents of
the houses, buildings or flats that belonged to ECDC. His response
was that none of the documents that he
was shown speaks about rentals
or the name of the building or flat.
(n) It was put to him
that the Xu family was renting from ECDC. They as PACTOA caused the
Xu family to pay them the rentals. The
Xu family had made statements
and are state witnesses and will confirm that the building does not
belong to them but to ECDC. He
responded that that was a lie and that
the building belonged to Mr Xu and that the lady that is there is new
and perhaps the investigating
officer threatened her to write such
statements.
(o) When he was asked
whether those tax invoices were for maintenance he elected not to
respond saying that when the matter comes
to trial he will have his
own documents to divulge.
(p) When he was
questioned about the lease agreement concluded between PACTOA as
Lessor and Mr Xu as lessee dated 22 November 2018
(exhibit 4), he
again stated that he did not wish to answer at this stage but
reserves his right for when the matter is tried saying
he had
information and notes regarding the agreement with Mr Xu.
(q) It was put to him
that the title deed showed that the building belonged to ECDC. His
response was that if he was released he
would be in a position to
bring his own documents which will show that the building belongs to
the Xu`s.
(r) It was put to him
that Mrs Xu had furnished them with a statement and the lease
agreement with PACTOA saying that she was leasing
the hotel from
PACTOA. He asked to skip that question and deal with it at trial.
(s) He confirmed that his
signature appeared on the lease agreement but not on the receipts.
(t) When it was put to
him that there is a statement from the Xu family that he was the one
who was collecting the monies from them
and signed those documents he
again asked to deal with that at trial.
(u) It was put to him
that all witnesses would say that they were initially paying rentals
to ECDC and they would come with 18-20
members of PACTOA and when the
tenants of ECDC would say that they were paying rent to ECDC they
would violently inform the person,
by pushing them out of the
building and telling them that if they did not pay rental to PACTOA
they would be substituted by other
people and their locks would be
changed. His response was that it was not true and that the witnesses
had not said this and if
it was true they should have gone to the
police to report it.
(v) When it was put to
him that if the witnesses did not comply they would take out all
their belongings from the building, he again
asked to skip that
question and that he would respond when that matter was tried.
(w) It was put to him
that some of the witnesses
were coerced
to
succumb to their
violence
and ended up being PACTOA`s tenant. He asked to skip
that question as well.
(x) It was put to him
that the
witnesses were afraid of him
because of this
modus
operandi
. He said fear was normal and he feared the
prosecutor.
(y) It was put to him
that the three of them were the brains and head of PACTOA and their
members were protesting outside because
they cannot function without
them. He again asked to skip that question.
(z) When it was put to
him that there is a likelihood of him being found guilty even if he
pleaded not guilty and that the state
had a strong case against him,
he initially said he could not dispute that then said that perhaps if
he could be released and produce
his own documents, the prosecutor is
likely to be found guilty then disputed that the state had a strong
case.
(aa) When it was put to
him that based on the evidence thus far, the state`s case stands
alone, unchallenged. He again asked to
pass that.
(bb) It was put to him
that the fact that he may be sentenced to 15 years’ direct
imprisonment would be incentive for him
to evade trial and go to
Dubai. He denied this.
(cc) It was put to him
that
having regard to the interest of the victims of PACTOA
,
the public members, his release would jeopardise the public
confidence in the criminal justice system and they will lose
confidence
in the court.
(dd) He asked to skip the
question when it was the converse that was asked of him about the
suffering of the victims and the victims’
family because of his
release when he asked the prosecutor “
are you advocating
that in order to protect those people, our families must suffer
…”
(ee) It was put to him
that the trial was ready and would be finalised within a short space
of time. He again said he did not wish
to respond to that.
(ff) He again did not
wish to respond to the allegations that they had been collecting
rentals from 2017 to 2022, a period of 5
years.
(gg) When it was put to
him that by collecting rentals on a monthly basis he had developed a
propensity to commit the same crime
on a monthly basis for 5years. He
again said that this did not require a response.
(hh) It was put to him
that a likelihood existed that he was going to commit a schedule 1
offence if he was released on bail. He
again stated that he was not
going to respond saying he does not know whether the state has got a
right to think of an action that
he is still going to take or will
take.
(ii) It was put to him
that the cash they collected was not put into the account of PACTOA.
He again asked to skip that question.
(jj) It was put to him
that he knew his conduct of collecting rentals due to ECDC was not
lawful. He stated that he had no answer
.
(ii) On the merits the
second applicant stated inter alia as follows: -
(a) He explained why he
did not come to the police on the Friday after he had undertaken to
do so and his explanation regarding
his fears due to his prior
traumatic experience when he was shot with rubber bullets by the
police was regarded as a reasonable
explanation by the state advocate
despite it being said that no threats or attacks took place on that
Friday.
(b) His only involvement
with ECDC was him entering into the Memorandum of Agreement with them
on behalf of PACTOA.
(c) He confirmed that he
had sent a voice note as the spokesperson of PACTOA. The purpose was
to make the members aware that the
office had been broken into and
that they must come and fetch their belongings.
(d) According to him he
told people as a norm that he is in China or Dubai because most of
the leaders of the country mentioned
Dubai. He factually has not gone
further than East London.
He was trying not to be
understood by the people he had led despite being close to them (His
reason for mentioning he was in Dubai
makes no sense.)
(e) He did not know he
was going to be arrested when he made the voice note (this confirms
the investigating officer`s version that
he had not mentioned to them
that they were going to be arrested).
(f) His version was that
the investigating officer had broken into the office and he was told
by members that this was done without
a warrant.
(g) He stated that he did
not understand or speak English, which is belied by the record at
page 204 when the proceedings commence
it appears he answered in
English prompting the magistrate to note “..
Yes .. if he
wants to speaks English it is ok but for the purposes of the people
there it must be interpreted into Xhosa, after
he has responded…”
There are numerous
instances where he responded before the questions were interpreted
into Xhosa demonstrating his knowledge and
understanding of English.
(h) It was put to the
second applicant, Mr Songca that he had sent a
WhatsApp
message to PACTOA members before coming to court and the contents of
the
WhatsApp
message were read to him:
“
Greetings
everyone. You are kindly requested to stay calm during this trying
and testing times. It is times like this where we have
to demonstrate
true leadership of which you are all leaders. You are urged not to
shift focus. The primary and urgent task is to
make sure bail money
is available to mobilize legal fees and pay them at appropriate time.
NB: It is estimated
that litigation will not be less than R2000 per person with a flat.
Including R300 for bail. Legal fees arrangements
will be made with
the lawyers “njengesiqhelo”(as usual). However, it is
worth noting that they will request litigation
fees (hlalani
nilungile) – (stay ready) But all this will not inconvenience
members financially. You will form part of the
discussions that will
put a final stamp to this. We humbly apologise to everyone who got
offended by the first message [VN]. That
was never the intention. We
call for unity and discipline among all members [Ngomso
sinelungiselelo lokudiban kwiinkundla zoMzantsi
Afrika kwinkundla
kamantyi eMthatha, kwinkundla yexesha 08:30 kusasa. Nkosi (Tomorrow
we have an arrangement to meet in the courts
of South Africa at
Mthatha F Court in the court of law and then thank you, at half past
8.”
(i) He denied being the
owner of the whatsapp message saying he does not write English and
does not understand what is written there.
He admits that the voice
note emanated from him. It was then put to him that this
WhatsApp
speaks about the voice note. He did not respond to that question and
appears to have merely smiled.
(j) There was again no
audible response when it was put to him that the interest of his wife
and family have to be weighed against
the interests of the victims
and the modus operandi that was utilised in committing the offences.
(k) It was put to him
that the victims were the Xu family, the occupants of S[...] Street,
Shop No.[…] V[...] Heights, Mr
Chips at S[...] and M[...]
Street. He asked to pass the question saying the prosecutor was
cooking something.
(l) It was put to him
that the victims had made statements claiming that PACTOA was a
violent organisation.
(m) He confirmed that the
documents indicated that they are collecting rentals and that there
is no document contesting that there
is no collection of rental
stating that this is because they are incarcerated.
(n) It was put to him
that the
WhatsApp
message confirmed the perpetuation of a
schedule 1 offence in that it asked for payment of rentals. His
response was that he will
hear.
(o) It was put to him
that he had the propensity to collect rentals and will collect
rentals if he was released on bail. His response
was that he never
collected rentals.
(p) He did not dispute
the veracity of the memorandum of agreement, the lease and the
receipts.
(q) He disputed that
Windsor Hotel belonged to ECDC and said at trial he would have his
own documents that are against the investigating
officer.
(r) He stated that PACTOA
does not own any buildings of its own but merely were bringing about
equity between the government and
them.
(s) When it was put to
him that the memorandum of agreement confirms that PACTOA is in
charge of buildings owned by ECDC his response
was that he does not
dispute anything here.
(t) It was put to him
that at least
three witnesses confirmed that they were collecting
rentals from them on a monthly basis
.
His response was that
that is not so and he will cross that bridge
when the witnesses
appeared and said so
.
(u) It was put to him
that the witnesses were fearful of them as they came with a group of
people and would threaten to lock their
places and lock them out. He
denied that.
(v) He denied demanding
rentals from the Xu`s in a group of plus minus 20 persons and pushing
the Xu`s and their employees out of
the shop prompting the Xu`s to
pay him out of fear or duress. He stated that he was not in the
cabinet at that time he knows nothing
about all those things.
(w) It was put to him
that it was strange and improbable that persons who had been paying
ECDC suddenly stopped paying rentals to
ECDC and PACTOA was in charge
of such building. His response was that he does not know.
(x) It was put to him
that his bail and the legal costs would be paid by the occupants of
the flats on their behalf and not by them
according to the
WhatsApp
message. His response was that he does not even know how to write
English and he knows nothing about this. (He did not say that
the
investigating officer was the author of the
WhatsApp
as put to
the investigating officer by his legal representative)
(y) It was put to him
that on their first appearance at court they were found in possession
of their cell phones and it was confiscated
from them. His response
was that on their arrival at Central they gave their phones for
safekeeping and it was returned to them
when they went to court.
(z) It was put to him
that they were not permitted to have their cell phones when coming to
court and that is one of the reasons
the state was alleging that the
police in Mthatha were captured. His response was that everyone
attending court is given his cell
phone.
(aa) It was put to him
that he jeopardises the bail system and the administration of justice
and that it would not be in the interest
of justice that he be
released on bail. His response was that he did not dispute that
because the bible says that they should let
those that are in
authority.
(bb) Under
cross-examination he stated that he is an illiterate person and does
not understand what the interests of justice means
and that inter
alia there was no one picketing against their release on bail.
(iii)
The Third Applicant`s testimony relating to the merits was briefly
inter alia
as follows: -
(i) The third appellant
on his version was informed of the charges and told he was going to
be arrested for fraud and theft of approximately
R40million when he
went to meet Colonel Booysen at PRD on the Monday;
(ii) he confirmed that
when they first went to Windsor they thought that the building
belonged to the government.
(iii) He did not
initially believe that Mr Xu was the owner of the building until he
was shown some paper when he became the chairperson
(which was on his
version in 2019).
(iv) According to him Mr
Xu explained that he was having difficulties obtaining rentals from
his tenants who were foreign nationals
and it was at that stage that
the chairman at the time offered him assistance.
(v) when the summons
wherein Mr Xu had sued one of the tenants were put to him he
indicated that he was unaware of that particular
one.
(vi) He stated that he
had attended a meeting and explained why properties belonging to ECDC
were under their control (thereby confirming
that they had taken
control of ECDC property).
(vii) He stated that he
did not know that ECDC owned Windsor Hotel. He believed that the
property belonged to the Transkei Government.
(viii) He initially
appeared to state it as a fact that the reason Mr Xu was referred to
as the tenant in the lease concluded with
PACTOA was so that they as
locals could deal with the foreign tenants then under
cross-examination stated that he was not privy
to the drafting or
signing of the lease agreement between PACTOA and Mr Xu as he was not
in the executive at the time but he is
assuming that this was the
reason.
(ix) According to him
PACTOA assisted families and the police by patrolling the streets,
stopped robberies and assisted people in
not having their goods
removed illegally. They assisted lots of people.
(x) When the lease
agreement between ECDC and Mr Xu that was concluded in 2015 was put
to him he stated that he elected not to comment
now but would like to
go to trial with the issue.
(xi) It was put to him
that the three of them had sent someone to collect R43450 from the Xu
family.
He said he does not have a response
.
(xiii) It was put to him
that they
had the propensity to collect rentals and to thus commit
schedule 1 offences which is fraud and or theft from ECDC
and
that
he would continue collecting rentals from the occupants of
ECDC properties and that it was not in the interest of justice to
release
him on bail
. His response was that he knew nothing about
that and that it was in the interest of the prosecutor.
(xiv) he requested to
pass on the issue of ownership of the property when it was put to him
that the Windsor Hotel had been transferred
to ECDC on the 13 June
2018. (He accordingly did not testify as to whether or not he was
informed by ECDC that it belonged to them.
Accordingly, the question
put to the investigating officer that they were not told by ECDC that
Windsor Hotel belonged to ECDC
is incorrect and does not accord with
their evidence)
(xv) It was put to him
that the very same people who he alleges are saying are owners made
statements to the effect that they were
renting from PACTOA and that
the state`s case against them is strong. His response was that he
doubts it and will wait to see the
documents coming from Xu.
(xvi) It was put to him
that Xu would not collaborate his version and will say the Xu`s never
owned Windsor Hotel. They will accordingly
be found guilty on their
own version. His response was that let them dispute documents that
they signed themselves.
(xvi) On being told that
a 15year sentence would be incentive for him to escape, his response
was that he would not be such a coward
as to run away from where he
grew up and having children and taking care of children.
(xviii) It was put to him
that PACTOA was a violent entity and that even his testimony
establishes that other organisations regarded
PACTOA as a violent
organisation. He said that was not true.
(xix) It was put to him
that PACTOA had been collecting rentals from 2017 until November 2022
(the month during which the bail application
was taking place and
post their arrest in October 2022). It was put to him that the state
was opposing bail on the basis that should
they be released on bail
they would continue collecting rentals thereby committing schedule 1
offences. His response was that it
is not like that and that he did
not know that PACTOA was collecting rentals in the first place.
(xx) He confirmed that it
was only the three of them that are members of PACTOA that are
presently busy with bail when questioned
regarding the
WhatsApp
message.
(xxi) He confirmed that
the three of them were in leadership roles in PACTOA and their
absence left a gap and that it may not function
optimally but stated
that they could be replaced and other members elected.
(xxii) It was put to him
that witnesses were afraid of them and that if they were released
they will endanger the safety of the
public and in particular the
state witnesses, which he denied.
(xxiii) It was put to him
that Mr Nkhola`s (the complainant in the pending case) version
regarding the firearm differed from his
version regarding
dispossession and that according to Nkhola he was dispossessed of his
firearm after he had been hit on the head
and was lying semi or
unconscious on the ground at the time he was being chased out of his
factory. He denied this and denied that
PACTOA collected money saying
PACTOA is a non-profit organisation which saved property belonging to
the government by renovating
it and making it better.
(xxiv) It was put to him
that he was part and parcel of the people who collected rentals in
2017 and that he committed an offence
whilst still on parole. His
response was that he did not commit any offence.
(xxv) It was put to him
that he occupied property belonging to ECDC without paying rentals.
(xxvi) It was put to him
that they do not have a fixed address and have multiple addresses.
His response was that no one has one
address.
(xxvii) That concluded
his evidence and the applicants` case.
(iv)
The testimony of the investigating officer in respect of his
opposition to the granting
of bail on behalf of the respondent was
inter alia the following: -
(a) He is attached to the
DPCI (Directorate for Priority Crime Investigation) with 34 years of
experience in the South African Police
Service (SAPS).
(b) According to him he
had a search warrant for PACTOA`s office at Windsor Hotel and a
warrant of arrest for the three applicants.
(c) He spoke to the
second applicant in English without divulging anything to him
regarding the warrant of arrest and the second
applicant told him he
is on his way in very good English. One of his team members told the
second applicant that they had a search
warrant to search the office
of PACTOA. When the second applicant did not arrive the door was
broken to the office and they gained
entry. No one was assaulted in
his presence and no reports of assaults were made and no personal
documents such as birth certificates
were amongst the documents that
were confiscated.
(d) The applicants were
only informed about their arrest when they came to the PRD offices.
(1) According to him: (a)
regarding the addresses of the applicants: -
(i) The information he
obtained demonstrates that each of them has five different addresses.
(ii) The first applicant
failed to give the address of 2[…] V[...] V[...] where he
resided and which was an ECDC property
and the address he gave when
he was arrested in June 2022.
(iii) The first applicant
did not even give the police his address in this matter when he was
arrested but gave Mr Ndwayi`s address
which is not his address.
(iv) The second applicant
also has five addresses that are ECDC properties and No. […]
O[...] in Port Elizabeth does not
exist it is an open space.
(v) None of them have
fixed addresses.
(2)
Threats
(i) He personally was
prevented from accessing premises belonging to ECDC to obtain
statements from these witnesses / occupants
by a group of 18-20
persons. One person had made a phone call to Mr Nkqayi and told him
that there was a gentleman who was doing
investigation for ECDC. He
did not hear the response from the person on the other side but the
person who had made the call told
the crowd that Mr Nkqayi had told
them to remove him and he was forced to leave.
(ii) He was unable to
obtain the statements thereafter as he was told by the residents of
the other flats that they were told not
to speak to the police or
ECDC but only to PACTOA.
(iii) All the tenants
told him that they were scared for their lives and they collaborated
each other saying that those guys are
very dangerous and would
victimise them and that is why
they do not wish to testify in
court
.
(iv) He said he was
better able to do his work now that they are in custody although
there are still messages coming from prison
from numbers belonging to
specifically the first and the second applicants telling tenants
not
to talk to the police
.
(v) The appellants were
found in possession of their cell phones in the grills despite there
being a standing order that nobody
is allowed to have cell phones in
court and he had personally handed over their cell phones to Mthatha
Central when he booked them
in.
(vi) Mrs Xu
told him
she was afraid
.
(vii)
He himself is
afraid to stay
in Mthatha and according to the information he
received members of the police, justice, correctional services,
politicians, lawyers,
doctors etc. are registered on PACTOA data
base.
(3)
The strength of
the state`s case / schedule 1 offence perpetuation
(a) He stated as follows
regarding the strength of state`s case and the likelihood of the
applicants committing a schedule 1 offence:
(i) According to him the
state witnesses collaborate each other that the three applicants as
well as others that he still needs
to arrest are involved in
pocketing the rentals for themselves;
(ii) They collect rent
and monies are being paid into their banking accounts without it
being paid over from their bank accounts
to ECDC.
(iii) The first
applicant`s bank account demonstrates that tenants’ monies are
paid into his account as rent Ndlovu rent,
B[...] Room 2[…] on
a monthly basis.
(iv) Each of the
applicants withdrew the monies shortly after it came into their
account.
(v) He also obtained a
cash book where the applicants wrote in their own handwriting the
money that came in and that they paid between
themselves.
(vi) The Xu`s all
corroborated each other that they paid rentals to PACTOA. Mrs Xu is
in South Africa although afraid she and her
son are clear that they
pay rentals to PACTOA.
(vii) All the tenants
paid rental for November 2022, whilst the applicants were in custody.
(viii) The first
applicant specifically sent a message to one gentleman saying “
do
not pay into my account anymore, pay cash, somebody is going to come
to you, give the money to that person.
”
(ix) The
WhatsApp
message regarding payment by each person for their bail and legal
representation came from the second applicant`s phone and he will
get
the proof from the service provider. He has the number for the phone.
(x) The applicants
according to him would commit a schedule 1 offence if released on
bail.
(xi) They would endanger
the public considering the threats that they had made and assaults on
some of the tenants that were unwilling
to pay them.
(xii) There is a
likelihood that they would evade trial according to him if they had
known he would arrest them and the charges
and the likely sentence
they would never have handed themselves over based on his experience.
(xiii) They will
intimidate or influence witnesses having regard to the messages that
emanates from their cell phones to the tenants
whilst they are in
custody.
(xiv) Mr Xu had told him
that he had no choice but to enter into an agreement with PACTOA who
Mr Xu described as hooligans saying
that they would collect the
rentals and then particularly the first applicant would come again in
the middle of the month for more
money. The first applicant collected
monies from him and issued him with receipts.
(xv) The first applicant
would first come alone but if Xu was unable to pay because business
was bad, they would come in their numbers,
grab him, throw him out of
his shop and lock his shop up and put their own locks until he paid.
(xvi) There was
another incident where they beat up a tenant regarding rentals and
when he went to the police they were unwilling
to assist him and
PACTOA returned and took his monies that he had kept for something
else.
(xvii) According to him
the interests of the victims outweighed those of the interests of the
applicants’ families.
(xviii) It was put to him
that at no stage did ECDC inform PACTOA that they owned the Windsor
Hotel so the applicants could not
have formed an intention to defraud
ECDC since they were unaware of their ownership of the property. His
response was that ECDC
would need to deal with that. (in any event
this was not the version of the applicants when they testified.)
(xix) According to him Mr
Xu`s statement that had been obtained three years prior was
collaborated by the documents that he obtained
when they searched and
seized documents from PACTOA`s office and he was adamant that it was
in terms of a valid search warrant
although he did not produce it at
court saying that the defence counsel would need to bring an
application to court for access
to it since:
(i) it formed part
of B clip and not A clip;
(ii) only A clip
documents were provided to the defence counsel ordinarily.
(xx) He denied that the
evidence was obtained illegally and unconstitutionally. He stated
that he came from a high ranking department
that did not work outside
the law when it was put to him that he concocted the
WhatsApp
message and sent it himself to falsify his opposition to the bail and
he further said that he would be able to prove that it emanated
from
the prison. (This again was not the version of any of the applicants
that is that the investigating officer who concocted
the
WhatsApp
message)
(xxi) He re-iterated that
the instruction came from the prison that rent must be paid for
litigation and was accompanied by a message
that they were not to
talk to the police.
(xxii) He stated that the
fact that the applicants already during the bail hearing collected
rent was indicative of the fact that
they were committing schedule I
offences even whilst incarcerated and that must be stopped.
(xxiii) He denied the
version that was put to him that the persons were paying support fees
(this again did not emanate from the
appellants who stated that they
would deal with the monies that were paid at trial).
(xxiv) In any event his
response was that all the witnesses submitted affidavits to the fact
that they were paying rent every month.
He re-iterated that monies
are being paid into all three of the applicants’ bank accounts
clearly reflected as rental monies
in the statements.
(xxv) When he was asked
about how ECDC entered into a lease with Mr Xu in 2015 when they only
took transfer of the property in July
2018 his response was that ECDC
would need to answer that.
[7]
Evaluation of evidence
(a)
The charge sheet demonstrates that the charge is not simply
restricted to ECDC but includes the tenants as well. This accordingly
demonstrates that contrary to the contention by the applicants it
does involve members of the public and is not limited to a state
entity.
(b)
The evidence of the investigating officer demonstrates that indeed
the state does have a strong case as illustrated by inter
alia:
(i)
The uncontroverted lease agreement concluded between PACTOA as lessor
and Xu`s as lessees in circumstances where it was confirmed
that
neither PACTOA nor the appellants personally owned any property. The
applicants reserved their rights to challenge this document
at trial
and thus adduced no acceptable evidence at the bail hearing to
gainsay or bring into question in any meaningful way this
document.
The third applicant eventually conceded that his attempts to
challenge it was based on assumptions he was making since
he was not
in the executive at the time it was concluded but he was aware of the
existence of the documents;
(ii)
The investigating officer indicated that the bank statements of the
individual applicants indicated the receipt of rentals
and names of
persons which he says will tie up to ECDC properties. The description
on their bank statements is rentals in contrast
with their
testimonies that they never received rentals and also viewed in light
of their contention that they owned no immovable
property thus they
were not entitled to any rentals.
(iii)
The receipts also show PACTOA receiving large sums of monies and when
questioned with regard to why these monies were paid
to PACTOA or
them for PACTOA there was again an election on their part to disclose
that at trial.
(iv)
The investigating officer also gave evidence regarding the modus
operandi of the applicants in causing the tenants of ECDC
to became
‘tenants’ of PACTOA by using force and threats and in
some instances assaulting the victims to force them
to pay over
monies.
(v)
The memorandum of agreement handed up by the applicants themselves
demonstrates that they were in control of property belonging
to ECDC.
(vi)
Their assertion that Windsor Hotel belonged to the Xu`s flies in the
face of the lease agreement that they concluded as lessors
and Xu`s
as lessees, as well as the statements attributed to the Xu`s and the
tittle deed which was not challenged in any meaningful
manner. This
demonstrates that at the time of the conclusion of the lease between
PACTOA and the Xu`s the registered owner was
ECDC
ex facie
the
title deed that remains unchallenged at this stage.
(vii)
Whether or not ECDC had the right to enter into a lease agreement
with the Xu`s in 2015 does not detract from the fact that
at the
material time PACTOA entering into the lease agreement the property
was owned by ECDC. This is clearly something ECDC must
explain at
trial. It does not cast doubt upon the veracity of the title deed and
the issue of ownership at the relevant time at
this stage.
(viii)
None of the applicants testified on whether or not they were told by
ECDC that the property belonged to them, they merely
related what was
told to them by the Xu`s and that is belied by the existence of their
own lease agreement, which none of them
could explain.
(ix)
Accordingly no weight can be attached to the assertion put to the
investigating officer by their legal representative that
they were
not told by anyone at ECDC that the property belongs to them since
this was not testified to by them.
(x)
The investigating officer states that the witness statements
demonstrate that Xu told them that they were leasing the property
from ECDC as did the other tenants of ECDC. That demonstrates that
they knew who the owners of the building were when they entered
into
their own agreement or at least were made aware of the fact that ECDC
owned those buildings that they were taking control
off and according
to the witnesses entering into their own agreements on behalf of
PACTOA in respect of those properties and collecting
rentals from the
occupants or tenants of those properties.
(xi)
They did this using force and unlawful means according to the
evidence available to the investigating officer and forced these
people to pay rentals to them in circumstances where they were on
their own version not the owners of the property and neither
was
PACTOA.
(xii)
There is no need to go further suffice to say that the state had
demonstrated that it had a strong case against the applicants,
based
on what was presented to court and being alive to the fact that the
state is not obliged to produce evidence in the true
sense. The court
of necessity at this stage is merely prognosticating on what is
presently before it.
(xiii)
The applicants were given ample opportunity to deal with the strength
or weakness of the state`s case and as correctly argued
by the
respondent`s counsel they elected to disclose their defence at trial.
There is accordingly no merit in the proposed further
ground of
appeal seeking a remittal of the matter to the court a quo on the
basis that the applicants were not given an opportunity
to adduce
evidence regarding the strength of the state`s case. This not only
was not one of the grounds of appeal but is not correct.
This court
has evidence before it and the applicants` responses to the state`s
evidence that was put to them the court is in a
position to determine
the strength or weakness of the state case, based on the evidence led
in the court
a quo
.
(xiv)
I do not accept the applicants’ counsel contention that the
state had to establish the strength of the state`s case
on a balance
of probabilities. The
onus
was actually on the applicants
inter alia to establish that the state`s case was weak when it had to
discharge the onus resting
upon it, on a balance of probabilities.
(xv)
The state has in any event adequately demonstrated on the evidence
that was tendered that it has got a strong case against
the
applicants so even if the onus had rested upon the responded, they
would have discharged the same.
(xvi)
I do not wish to say more as the merits and the guilt or innocence of
the applicants falls squarely in the domain of the trial
court and
this court is merely taking cognisance of information that was placed
before the court
a
quo in the bail proceedings.
(xvii)
The state has adequately demonstrated the probability that the
applicants would commit a schedule 1 offence by:
(a)
demonstrating that rentals were collected on a monthly basis for a
prolonged period indicating the propensity to commit schedule
1
offenses;
(b)
by demonstrating the existence of the
WhatsApp
message from
the second applicant that not only shows that the applicants were,
even whilst in prison, communicating with potential
witnesses but
that they had caused rentals to be paid during the month of November
whilst they were in custody;
(c)
The investigating officer had confirmed that he had been informed
that the first applicant had personally contacted a “tenant”
and told him not to pay into the first applicant`s account but that
someone would come and collect the monies, and indeed those
rentals
were paid.
(d)
The Xu`s also confirmed that monies were collected from them on
behalf of the applicants in November.
(e)
He was also informed that they told them not to communicate with the
police.
(f)
There is accordingly a probability having regard to the foregoing
that the applicants would commit schedule 1 offences if released
on
bail.
(g)
The violent conduct attributed to their organisation demonstrates
that it is unlikely that they would be deterred by any bail
condition
considering their conduct of having rentals collected whilst in
custody. (h) No bail conditions would prevent the likelihood
of this
criminal conduct being perpetuated if they were released on bail
considering that even their incarceration was not a deterrent
to them
committing further offences whilst in custody during the bail
proceedings, by having rentals collected on their behalf.
(i)
The second applicant`s denial of the
WhatsApp
message
emanating from him because he does not speak or write English, was
demonstrated as improbable considering his answering
in English and
answering before questions were interpreted as well as the
investigating officer`s testimony to the effect that
he would prove
that it came from prison from the second applicant`s phone. There was
no gainsaying evidence that was presented
during the bail hearing.
(j)
This demonstrates that one of the grounds mentioned in
section 60
(4)(a) is present whereby the interest of justice would not permit
the release of bail in that there is a likelihood / probability
of
them committing a schedule 1 offence and the perpetration of this
offence even whilst in custody demonstrates that no bail condition
would serve as a deterrent to them committing schedule 1 offences if
released on bail. Their personal circumstances and that of
their
families and employees are outweighed by the presence of a strong
case and the likelihood of them perpetrating a schedule
1 offence.
(k)
The presence of any one of the factors listed in subsection 4 is
sufficient to make a finding that it is not in the interest
of
justice to release the applicants on bail.
(l)
The presence of the likelihood of the perpetuation of a schedule 1
offence is in my view a sufficient basis to deny the applicants
bail
having regard to the facts of this case.
(m)
I accordingly will not go into further grounds despite the fact that
the presence of interference with witnesses also appears
from the
WhatsApp
message that tells them not to talk to the police and
the fear of victims is also evident from the testimony of the
investigating
officer that the applicants do not have a fixed abode.
The police were unable to find them on their own despite searching
for them
according to the investigating officer.
(xv)
Interest of justice
(a)
The applicants are charged with schedule 5 offences and although the
applicants do not have to overcome the higher hurdle of
proving
exceptional circumstances, as required in a schedule 6 offence, the
burden to prove that it is in the interests of justice
is not
negligible and necessitates a proper and careful evaluation by this
Court. In considering this appeal, even if this Court
has a different
view, it should not substitute its own view for that of the court a
quo, because that would be an unfair interference
with the court
a
quo
`s exercise of discretion.
(b)
It is after all the court
a quo
that would have been best
equipped to deal with the question of bail, steeped in the atmosphere
of the case.
(c)
This court must consider all relevant factors and determine whether
individually or cumulatively they warrant a finding that
the
interests of justice warrant their release.
(d)
I have duly considered all the relevant factors and the personal
circumstances of the applicants and that of their families
who will
undoubtedly be adversely impacted by the continued detention of the
applicants.
(e)
The personal circumstances of the applicants are neither unusual or
such as singly or together warrant the release of the applicants
in
the interests of justice.
(f)
My sympathies lie with their families, however their interests have
to be weighed up against the strength of the state`s case,
probability of the applicants committing a schedule 1 offence and all
the other evidence that has been tendered in court.
(g)
The personal circumstances of the applicants are completely
outweighed by these factors and taking into account all the relevant
considerations no bail condition in the circumstances of this case
would address the legitimate concerns of the state particularly
the
probability of the applicants committing a schedule 1 offence. That
alone is a sufficient basis to find that it is not in the
interests
of justice to release the applicants on bail.
[8]
The applicants have accordingly failed to discharge the onus resting
upon them to
establish that it is in the interests of justice for
them to be released on bail.
[9]
The magistrate`s conclusion in refusing bail was accordingly correct
for the reasons
advanced above based on inter alia: -
(i) the strength of the
state`s case;
(ii) most importantly the
propensity of the three applicants to commit a schedule 1 offence and
the probability that they will commit
such an offence, and
(iii) their failure to
demonstrate that it is in the interests of justice to release them on
bail, having regard to all the relevant
factors and authorities
listed above.
[10]
There is accordingly no reason to interfere with the learned
magistrate refusal of bail which
was the decision appealed against.
[11]
The learned magistrate`s refusal was justified having regard to the
facts of this case and the
findings made above and having regard to
the relevant authorities.
[12]
In the result the following order is made: -
(i)
The Bail Appeal is dismissed.
FBA DAWOOD
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Appellants:
Adv
Kessler Perumalsamy
Instructed
by:
SR
Mhlawuli & Associates
Suites
318 & 325 ECDC Building
Mthatha
For the Respondents:
Adv
Thenjwa Sellem
Instructed by:
The Director of Public
Prosecutions
No. 94 Sisson Street
Mthatha
Date heard
27 February 2023
Filling of
Supplementary Submissions:
06 March 2023
Judgment delivered:
28 March 2023
[1]
S
v Barber
1979 (4) SA 218
(D) – 220E-H.
[2]
S
v Porthen and Others 2004 (2) SACR 242 (C).
[3]
1979
(4) SA 218
(D) at 220E – H.
[4]
2004
(20 SACR 242
(C) para 4.
[5]
S
v Dlamini
199 (4) SA 626
– 627.
[6]
Paragraphs
[41], [42] and [43] at 653 G/H-654A/B and 654E-I/J.
[7]
Paragraphs
[47] – [50] and [101] at 656H-657B/C, 657E/F-658A and 680H-J.
[8]
S
v Pineiro and Others 1992 (1) SACR 580 (Nm).
[9]
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
1999(2) SACR 51 (CC) at 78d-f.
[10]
S
v Lupuwana 2015 JDR 0455 (ECP).
[11]
Mathebula
v
S
2010
(1) SACR 55
(SCA) at para 12.
[12]
Page
51 of the record.