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[2022] ZAGPPHC 124
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Tshofoti v S (A281/2021) [2022] ZAGPPHC 124 (4 February 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case No:
A 281/2021
4/2/2022
In
the matter of:
Xolile
Tshofoti
Appellant
And
The
State
Respondent
JUDGMENT
Maumela
J.
1.
This is a bail appeal which is opposed by the
state. The Appellant is
Xolile
Tshofoti, a male who was 34 years of age at the time he was arrested.
His residential address is indicated to be No [….].
Before
the Regional Court for the District of Gauteng sitting at Nigel, the
accused was charged with the offence of contravening the
provisions
of section 5(1), read with Section 1, 56(1), 57, 58, 59, 60 and 61 of
the Sexual Offences Act 32/2007 and read with the
provisions of
Section 51 and Scheduled 2 of the Criminal Law Amendment Act
1997:(Act No 105 of 1997).
ALLEGATIONS:
2.
The allegations against the accused are that upon
or about the 19
th
of June 2021, at or near Duduza in the District of Ekurhuleni
East/Regional Division of Gauteng, the accused did unlawfully and
intentionally
sexually violate the complainant to wit, N[….] M[….],
the complainant; by having sexual intercourse with her without her
consent.
It is alleged that the complainant was 15 years of age at
the time the offence was committed.
3.
Subsequent to his arrest, before the Regional
Court, held at Nigel, the Appellant unsuccessfully applied for bail
on the 7
th
of
September 2021. The Appellant granted Legal Aid South Africa the
necessary Special Power of Attorney to prosecute the appeal on
his
behalf. On the 9
th
of September 2021, Appellant filed a Notice of Appeal in terms of s65
of the Criminal Procedure Act 1977: (Act number 51 of 1977)
- CPA.
The State did not oppose Appellant’s application to be released on
bail pending the outcome of the trial.
THE APPELLANT’S CASE:
4.
In substantiation of his application to be
admitted to bail, the Appellant stated before the court
a
quo
that:
4.1.
He was born on 5 May 1987, and is 34 years of
age;
4.2.
He has been residing at [….] over the past 20
years together with his wife,
4.3.
He resides there with his wife and 6 children;
4.4.
He is married with 6 dependants;
4.5.
1626 Kubeka Street in Tsakane is his confirmed
alternative address,
4.6.
He is a sole breadwinner. To support his wife and
children, he does odd jobs as a taxi driver and he earns R500 per
week,
4.7.
He has neither previous convictions nor pending
cases,
4.8.
He applied for a permanent employment at Supreme
and has been informed of success,
4.9.
He commits never to evade his trial, intimidate
any of the witnesses or to commit any schedule 1 offence;
4.10.
He contends that his release will not undermine
the proper functioning of the Justice System or undermine the public
peace and security.
THE STATE’S CASE:
5.
The State did not oppose the application brought
by the Appellant to be released on bail pending the finalisation of
his trial. It
however placed the affidavit of the Investigating
Officer; (I/O), before the Court. In it, the following was stated:
5.1.
Outcomes of the DNA investigations are still
outstanding and it would take a long time to obtain the requisite
report,
5.2.
The Appellant’s address was verified,
5.3.
There is no likelihood that the appellant if
released on bail will endanger the safety of the public and that the
Appellant does not
have any previous convictions,
5.4.
There is no likelihood that the Appellant will
attempt to evade his trial,
5.5.
The appellant was cooperative and did not provide
the I/O with false information.
5.6.
There is no likelihood that the Appellant will
influence or intimidate witnesses if he is released on bail,
5.7.
That the witnesses have already made statements
and
5.8.
That there is no likelihood that the released of
the Appellant will undermine the proper functioning of the Criminal
Justice System,
including the bail system.
6.
The I/O raised one issue on the basis of which he
would be opposing bail and in that regard, he stated as follows: “
I
am opposed to the release of bail on the applicant due to the
victim’s age and the fact that the victim and the accused are
neighbours.”
The I/O, however, indicated
that he would not oppose bail if the applicant moves away from the
address where he is currently residing.
7.
In dismissing the applicant by the appellant to
be released on bail, the Regional Magistrate held as follows: “
I
am of the view that all the factors are not put before this Court in
order for the Court to weigh effectively to grant the accused
bail.
For that reason the Court is…..”
8.
The Appellant pointed out that in dismissing the
application for bail, the court
a quo
based its decision on the fact that there are certain factors that
were not put before court. The Appellant pointed out that in doing
so, the court
a quo
disregarded the peremptory provisions of Section 60(3) of the CPA
which provides the following:
(3). “
If
the court is of the opinion that it does not have reliable or
sufficient information
or evidence at its disposal or that it lacks
certain important information to reach a decision on the bail
application, the
Presiding Officer shall order that such
information or evidence be placed before the court.”
9.
It was submitted on behalf of the Appellant that
the disregard of the peremptory provisions of Section 60(3) of the
CPA, resulted
in the Court
a quo
making an adverse finding with regard to the Applicant’s release on
bail. The court
a quo
noted that the Appellant got word through his wife that he must go
for a job interview; yet it held that there is no proof of
that.
10.
The Appellant raised the point that the court
a
quo
noted that it was alleged that the
Appellant is a main breadwinner. It however speculated that the
children received grants and that
the mother and the children will be
able to survive on the grants. No evidence was tendered to prove
that. The State did not challenge
the evidence put on record by the
Appellant and did not provide any evidence contradicting his version.
It was submitted that the
Court erred by finding that there is no
proof of the facts stated by the Applicant in his affidavit. It was
argued further that by
making speculative findings regarding alleged
grants being received on behalf of the Applicant’s children the
court arrived at
a wrong conclusion.
11.
Regarding
the admittance of accused persons to bail, section 60 (2) (b) and (c)
of the CPA provides as follows:
“
(2)
.
In bail proceedings the court-
(b). may, in respect of matters that are not in dispute between the
accused
and the prosecutor, acquire in an informal  manner
the
information that is
needed for its decision or order regarding bail;
(c)
.
may, in respect of matters that are in dispute between the accused
and
the prosecutor, require of the prosecutor or
the accused,
as the case may
be, that evidence be adduced;
12.
It was also submitted that if the court required
proof of certain facts to come to a just conclusion, then it, (the
court), was obliged
to order the parties to place further evidence
before the court. The evidence by the Appellant was not disputed by
the State. Therefore,
it is submitted that the court should have
considered it as evidence.
APPROACH ON A BAIL APPEAL.
13.
Section 65(4) of the CPA provides the
following:
“
The court or judge hearing
the appeal shall not set aside the decision against
which
the appeal is brought, unless such court or judge is satisfied that
the
decision was wrong, in which event
the court or judge shall give the decision
which in
its or his opinion the lower court should have given.”
14.
The Appellant contends that the Court
a
quo
erred in refusing the Appellant’s
application to be released on bail. It is also submitted that from
the reasons provided by the
Magistrate, it is not clear why the
Appellant’s application for bail was refused.
15.
For
purposes of the bail application brought before the court
a
quo
by the Appellant, section 60(11) (a) of the CPA comes relevant. This
section relates to instances where the crimes alleged fall under
Schedule 6 of the CPA. In that regard, the section provides as
follows:
“
(11).
Notwithstanding any provision of this Act, where an accused is
charged
with an
offence referred to-
(a)
.
in
Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance
with the law,
unless
the accused, having been given a reasonable opportunity
to do so,
adduces evidence which satisfies the court that
exceptional
circumstances exist which in the interests of
justice permit his or
her
release;
16.
From the reading of this section, the onus lies
on the Appellant to place exceptional circumstances before the Court,
which in the
interest of justice permit his release.
INTEREST
OF JUSTICE:
17.
Concerning
the ‘interests of justice’, Section 60 (4) (a)-(e) provides the
following:
“
(4)
.
The
interests of justice do not permit the release from detention of an
accused where one or more of
the following grounds are established:
(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; or
(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 to
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
or the proper
functioning of the criminal justice system, including
the bail
system; or
(e)
.
where
in exceptional circumstances there is the likelihood that the
release of the accused will disturb the public order or undermine
the
public peace or security.”
18.
To determine whether the interests of Justice
permit the Appellant’s release on bail, section 60 (9) is
peremptory. This section
provides the following:
“
(9).
In considering the question in subsection (4), the court shall decide
the
matter by weighing
the interests of justice against the right of the accused to
his or her personal freedom and in particular the prejudice he or she
is likely
to suffer if
he or she were to be detained in custody, taking into account,
where applicable, the
following factors, namely-
(a). the period for which the accused has already been in custody
since his
or her arrest;
(b). the
probable period of detention until the disposal or conclusion of the
trial if the accused is not released on bail;
(c). the reason for any delay in the disposal or conclusion of the
trial and any
fault on the part of the accused with regard to such
delay;
(d). any financial loss which the accused may suffer owing to his or
her
detention;
(e). any
impediment to the preparation of the accused's defence or any
delay in obtaining legal representation which may be
brought about by
the detention of the accused;
(f). the state of health of the accused; or
(g). any other factor which in the opinion of the court should be
taken into
account.”
19.
The Appellant submits that the judgment of the
court
a quo
does not
reflect that the peremptory provision under Section 60(9) was
complied with.
EXCEPTIONAL CIRCUMSTANCES:
20.
With
regard to exceptional circumstances, the Constitutional Court in the
matter of
S
v Dlamini v Dladla and Others; S v Joubert; S v Schietekat
[1]
,
held the following at paragraph 89 e-f:
“
In
requiring that the circumstances proved must be exceptional, the
subsection does not say they must be circumstances above and beyond,
and generally different from those enumerated. Under the subsection,
for instance, an accused charged with a Schedule 6 offence could
establish the requirement by proving that there are exceptional
circumstances relating to his or her emotional condition that render
it in the interests of justice that release on bail be ordered
notwithstanding the gravity of the case.”
21.
Still
concerning the aspect of exceptional circumstances, the
Supreme
Court of Appeal in the matter of
S
v Rudolph,
at page 266 h-I, held the following:
“
Exceptional
circumstances do not mean that 'they must be circumstances above
and beyond, and generally different from those enumerated'
in ss
60(4) - (9). In fact, ordinary circumstances present to an
exceptional degree, may lead to a finding that release on bail is
justified.”
In the case
of
S
v DV and Others
[2]
,
the
Court held the following at paragraph 8:
“
In
the context of s 60 (11) (a), the exceptionality of the circumstances
must be such as to persuade a court that it would be in the
interest
of justice to order the release of the person of the accused. A
certain measure of flexibility in the judicial approach
to the
question is required.”
22.
The Appellant stated in his affidavit that with
regard to the interest of justice, and more in particular the factors
as enumerated
in Section 60(4)(a)-(e), none among the factors listed
come attendant to his situation and therefore, he deserves to be
admitted
bail. The Investigating Officer also confirmed that.
23.
In the
case of
S
v Branco
[3]
the court held the following at p. 532 H-I:
“
The
fact that the appellant bears the onus does not mean that the State
can adopt a passive role by not adducing any or sufficient
rebutting
evidence in the hope that the appellant might not discharge the onus.
(See S v Jonas
[4]
;
S v Mauk
[5]
).
The
appellant points out that the state did not advance any evidence to
rebut his contention the that he proved before court that
considering
all circumstances, he stands entitled to be admitted to bail.
24.
The
only reasons advanced by the Investigating Officer towards opposition
to the admittance of the appellant to bail as to do with
the age of
the complainant and the fact that he in the complainant are
neighbours. However, there is no evidence showing that any
of the
factors as listed under Section 60 (4) (a)-(e) may materialise. In
the case of
S
v Diale and Another
[6]
,
at paragraph 14, the honourable Kbushi J stated that:
“
A
court cannot find that the refusal of bail is in the interest of
justice merely because there is a risk or possibility that one
or
more of the consequences mentioned in s 60 (4) will result. The court
must not grope in the dark and speculate; a finding on the
probabilities must be made. Unless it can be found that one or more
of the consequences will probably occur, detention of the accused
is
not in the interest of justice, and the accused should be released.’
OBJECTIVE
OF BAIL:
25.
In the
cases of
S
v Dlamini v Dladla and Others; S v Joubert; S v Schietekat
[7]
,
the Constitutional Court held that the basic objective traditionally
ascribed to the institution of bail is to maximise personal
liberty.
In the case of
Senwedi
v
S
[8]
,
the Constitutional Court recently held the following at paragraph 27
with regard to a persons’ right to freedom
:
“
Our
Courts must defend and uphold the Constitution and the rights
entrenched in it.  One of the most important rights, from a
historical perspective, is unquestionably the deprivation of an
individual’s liberty.  This Court said in Ferreira that
“[c]conceptually,
individual freedom is a core right in the panoply
of human rights”. The apartheid regime repulsively and
capriciously deprived
people of their freedom under illegitimate
legislation that paid no respect to the rights to freedom and
security of the person.
We are therefore constrained to
jealously guard the liberty of a person under our Constitution,
particularly in terms of section
12 of the Bill of Rights.”
26.
In S v
Branco
[9]
at 537 a-b, the Court
held the following:
“
Finally,
a court should always consider suitable conditions as an alternative
to the denial of bail. Conversely, where no consideration
is given to
the application of suitable conditions as an alternative to
incarceration, this may lead to a failure to exercise a proper
discretion.”
27.
In the
case of
S
v DV and Others
[10]
,
Legodi
J held the following at paragraph 54:
“
Bail
conditions have always served to ensure that whatever fears the state
might have in the release of an accused person are taken
care of. It
is a necessary consideration, as also envisaged in s 60 (6), which
provides that, in considering whether the ground in
ss (4) (b) has
been established, the court may, where applicable, take into account
the binding effect and enforceability of bail
conditions which may be
imposed, and the ease with which such conditions could be breached.”
28.
The complainant in this case was 15 years of age
when they offense was allegedly committed. The allegations are that
the Appellant
subject to her to sexual assault. The Appellant
disputes the allegations made against him. The Appellant and the
complainant our
neighbours. It is alleged that after the commission
of the alleged offence, the Appellant summoned the complainant to his
place of
residence whereupon he threatened her, telling her not to
divulge the alleged sexual offense to anyone.
29.
It is
trite that undesirable act or eventualities which bail applicants are
likely to cause may be circumvented by way of building
conditions
into the bail granted. See
S
v Branco
[11]
.
It
is therefore undesirable to keep the Appellant incarcerated and to
undermine his constitutional right to freedom in order to prevent
him
from committing crimes against members of the public or indeed the
complainant in this case. The Investigating Officer is perfectly
positioned to access the correctness or otherwise of admitting the
Appellant to bail.
30.
Such a person would therefore have ‘sounded a
bell’ against the admittance of the Appellant to bail. The fact
that he decided
not to do so points to a lack of convincing evidence
pointing to wrongness in admitting the Appellant to bail.
31.
The Appellant placed evidence before the Court
which was not disputed by the State. The State chose not oppose the
Appellant’s bail
application. That being the case, his evidence
stands where there is no opposing evidence from the state disproving
the evidence
he gave. That evidence was confirmed by the
Investigating Officer.
32.
That being the case the court finds that
exceptional circumstances are attendant to the Appellant which
warrant his release on bail.
The court finds further that the
decision by the magistrate refusing the Appellant’s application to
be admitted to bail cannot
be sustained by the facts proven in the
case. The second decision was therefore incorrect and it stands to be
set aside.
33.
Consequently, the Appellant’s appeal against
the refusal of his application for admittance to bail made by the
Magistrate is set
aside and the following order is made:
ORDER.
33.1.
The bail appeal of the appellant is upheld.
33.2.
The order of 7 September 2021 by the Regional
Magistrate, dismissing the appellant’s bail application, is set
aside and substituted
with the following order:
33.2.1.
Bail is granted in the amount of R 500 (five
hundred Rand), on the following conditions:
33.2.1.1.
That the appellant shall attend all Court
appearances until the finalisation of the trial and
33.2.1.2.
That the appellant shall not contact,
communicate, interfere or intimidate any of the state witnesses;
T.A.
Maumela.
Judge of the High Court of South Africa.
[1]
.
1999 (4) SA 623 (CC).
[2]
.
2012 (2) SACR 492(GNP).
[3]
.
2002 (1) SACR 531 (W)
[4]
.
1998
(2) SACR 677 (SE).
[5]
.
1999 (2) SACR 479
(WLD) at 484B-C.
[6]
.
2013
(2) SACR 85
(GNP).
[7]
.
[1999] ZACC 8
;
1999 (4) SA 623
(CC).
[8]
.
(CCT 225/20)
[2021] ZACC 12
(21 May 2021).
[9]
.
2002(1) SACR 531 (W)
[10]
.
2012 (2) SACR 492(GNP).
[11]
.
Supra.