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[2011] ZASCA 119
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Masoanganye v S (252/2011) [2011] ZASCA 119; 2012 (1) SACR 292 (SCA) (7 July 2011)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
252/2011
In
the matter between:
ANDRIES
JOE MASOANGANYE
….......................................................
First
Appellant
TLALENG
ALINA MHELKWA
….......................................................
Second
Appellant
and
THE
STATE
…..............................................................................................
Respondent
Neutral
citation:
Masoanganye v The State
(252/11)
[2011] ZASCA
119
(7 July 2011)
Coram:
Harms AP, Brand and Maya JJA
Heard:
05 July 2011
Delivered:
07 July 2011
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
North West High Court (Mafikeng)
(Leeuw JP sitting as court of first instance):
1. The appeal of the first appellant is dismissed.
2. The appeal of the second appellant is upheld. The
order of the court a quo with regard to her is set aside and replaced
with
the following:
(a) Bail consisting of the amount of R25 000 is
granted to
TLALENG ALINA MHLEKWA
subject thereto that she:
(i) furnish the Registrar of the North-West High Court
Mahikeng and the Director of Public Prosecutions, North-West,
Mahikeng, with
her full residential and postal address as well as of
the address of her attorney of record; and
(ii) deliver the Notice of Appeal to the Full Bench
within twenty (10) days of this order, as required in Rule 49(2) and
(3) of
the Uniform Rules.
(b) has to, within twenty (20) days after receipt of a
copy of the record of the trial proceedings from the aforesaid
Registrar
in accordance with the provisions of Rule 49A of the
Uniform Rules apply to the aforesaid Director of Public Prosecutions,
to set
a date for the hearing of the appeal as required in Rule
49A(2);
(c)
TLALENG ALINA MHLEKWA
has to at least twenty
(20) days before the date for the hearing of the appeal deliver her
Heads of Argument in accordance with
the provisions of Rule 49A(3) of
the Uniform Rules.
(d)
TLALENG ALINA MHLEKWA
has to within
seventy-two (72) hours of service of an order to surrender
contemplated in Section 307(3)(b) read with
Section 321(2)
of the
Criminal Procedure Act, No. 51 of 1977
, in the manner prescribed by
the Uniform Rules on her at her residential address referred to in
(a)(i).
(e) If
TLALENG ALINA MHLEKWA
should fail to
comply with the provisions of paras (b), (c) and (d), bail shall be
provisionally cancelled and the bail money provisionally
forfeited
and a warrant for her arrest shall be issued.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS AP (BRAND and MAYA JJA concurring)
[1] Mr Andries Masoanganye and Mrs Tlaleng Alina
Mhlekwa, to whom I shall refer for the sake of convenience as the
first and second
appellant respectively, were found guilty and
sentenced to periods of imprisonment by Leeuw JP in the North West
High Court, Mafikeng.
They were the first and third accused in a case
that concerned the theft of funds from the Guardian Fund. The first
appellant was
the Master and the second appellant the Assistant
Master of the High Court in Mmabatho at the relevant time. Important
to note
for purposes of this judgment is the fact that they were
allegedly in cahoots with an attorney, Mr Abdul Kader Ahmed, who used
his firm’s trust account for diverting the money involved.
Ahmed was a co-accused, and he too was found guilty and sentenced
to
a period of incarceration.
[2] The appellants and Ahmed applied to the trial court
for leave to appeal to this court and for an extension of their bail
pending
the finalisation of their appeal. The learned judge below
granted them leave to appeal against conviction and sentence but
ordered
that the appeal be heard by the full court of the North West
High Court. She released Ahmed on bail but refused the appellants
bail.
[3] We have before us an appeal by the appellants
against the refusal of the court below to grant them bail and an
application by
them to lead further evidence on appeal in support of
their bail appeal.
[4] There is in addition applications by the appellants
and by Ahmed for a direction that the appeal be heard by this court
instead
of the full court. Such application is dealt with in chambers
but it is convenient to set out our reasons for dismissing these in
this judgment.
[5] The background to these applications is the
following. It would appear that Ahmed had applied for a separation of
trial, which
was refused. This, he said, meant that he had to incur
unnecessary legal expenses and that he therefore did not have a fair
trial.
It seems that Leeuw JP was asked and did in the course of the
trial make a special entry on the record in this regard.
[6] It would also appear that the accused had asked the
learned judge during the trial to recuse herself on the basis of a
perceived
animosity towards the accused by virtue of numerous
indulgences granted to the prosecution. She dismissed the application
and apparently
made a special entry at the request of the accused
based on her refusal.
[7] The last issue was raised by the two appellants
only. Their final complaint was that the learned judge had asked for
a correctional
supervision report for purposes of sentencing. It was
not forthcoming and she proceeded to sentence them without such a
report.
Although asked, Leeuw JP did not make the necessary special
entry.
[8] The appellants and Ahmed allege that these issues
entitle them to an appeal as of right to this court by virtue of
s
318
of the
Criminal Procedure Act 51 of 1977
and that it does not
make sense to have two appeals in the same matter, one before the
full court on the merits and another before
this court on the special
entries.
[9] The argument is no doubt correct provided the
special entries were proper special entries as envisaged by
s 318.
They are, however, not. As was explained in
Staggie
v The State
(38/10)
[2011] ZASCA 88
(27 May 2011):
‘
Special
entries are an anachronism dating from the time when the right to
appeal in a criminal case was severely restricted. In
spite of what
was said in a time frame not far removed from the extension of the
right to appeal by Schreiner ACJ in
R
v Nzimande & others
1957
(3) SA 772
(A) at 773H-774D, the only purpose it serves today is to
record irregularities that affect the trial that do not appear from
the
record. Examples given by Hiemstra
1
relate
to the removal of an assessor by the presiding judge for reasons that
were not debated in open court (
S
v Malindi & others
1990
(1) SA 962
(A)); the failure of the prosecutor to disclose
discrepancies in a witness’s statement (
S
v Xaba
1983
(3) SA 717
(A)); and where the was a breach of the attorney-client
relationship and the evidence so obtained was used against the
accused
(
S
v Mushimba
1977
(2) SA 829
(A).’
[10] Like in
Staggie
,
all the so-called irregularities relied did not qualify because they
all concerned an attack on rulings made by the court during
the
proceedings and they do not relate to irregularities that affect the
trial that do not appear from the record. This means that
the notices
of appeal filed in this court by the appellants and by Ahmed were
irregularly filed and have to be set aside.
[11] This means that the application that the appeal be
heard by this court because of
s 318
was misconceived. However, the
appellants and Ahmed gave another reason. They believe that the
judges assigned to hear the appeal
may defer to the trial judge
because she is the judge president of that court. This belief, if
truly held, has no factual basis.
There is on the papers before us no
reason to believe that the judges that will hear the appeal will not
hold to their judicial
oath and decide the case fearlessly. If the
appellants and Ahmed have reason to apply for the recusal of any
particular judge,
that application should be directed to that judge
at the appropriate time. In our system, if there is reason to believe
that proximity
could be a problem, the practice is to ‘import’
a judge or judges from other high courts to hear the particular case.
[12] We had regard to the notices of appeal filed not
only in this court but also in the high court. The issues are purely
factual
and appear to be staight forward. There is accordingly no
reason to direct that the appeal be heard by this court. On the
contrary,
the registrar will be directed to return the notices of
appeal filed in this court because they were incorrectly accepted.
The
full court can deal with the alleged irregularities in the course
of the appeal.
[13] I now revert to the appeal
proper. An appplication for bail after conviction is regulated by
s
321
of the Act. It provides that the execution of the sentence of a
superior court ‘shall not be suspended’ by reason of
any
appeal against a conviction unless the trial court ‘thinks it
fit to order’ that the accused be released on bail.
This
requires of a sentenced accused to apply for bail to the trial court
and to place the necessary facts before the court that
would entitle
an exercise of discretion in favour of the accused. Compare
S v Bruintjies
2003 (2) SACR 575
(SCA) para 8.
[14] Since an appeal requires leave
to appeal which, in turn, implies that the fact that there are
reasonable chances of success
on appeal, is on its own not sufficient
to entitle a convicted person to bail pending an appeal:
R
v Mthembu
1961 (3)
SA 468
(D) at 471A-C. What is of more importance is the seriousness
of the crime, the risk of flight, real prospects of success on
conviction,
and real prospects that a non-custodial sentence might be
imposed.
[15] It is important to bear in mind that the decision
whether or not to grant bail is one entrusted to the trial judge
because
that is the person best equipped to deal with the issue
having been steeped in the atmosphere of the case. Through
legislative
oversight, something this court has complained about for
more than two decades and ignored by the Executive, a convicted
person
has an automatic right of appeal to this court against a
refusal of bail. But there is a limit to what this court may do. It
has
to defer to the exercise of the trial court’s decision
unless that court failed to bring an unbiased judgment to bear on the
issue, did not act for substantial reasons, exercised its discretion
capriciously or upon a wrong principle.
[16] The problem is that the trial judge, contrary to
established practice, failed to give reasons for granting leave to
appeal.
The problem is exacerbated by the fact that the judgment on
conviction is not before us due to the failure of the trial judge to
release it – even after four months. We do not know the reasons
but the delay is, prima facie, inexcusable.
[17] This failure makes it difficult for us to assess
whether the appellants have any real prospects of success on the
merits. In
addition, although the appellants have filed full
affidavits and heads, they did not deal with the merits of the
appeal. We are
also unable, in the absence of extracts from the
record, to assess whether there is any merit in the bias allegation
nor do we
know what a pre-sentence report would have shown that could
have led to a non-custodial sentence being imposed. This means that
we can but give little weight to chances of success on conviction.
[18] A further problem is that the court below intimated
that it had other reasons for refusing bail which it was prepared to
disclose
if approached. Such an approach was not made. It would
appear that the trial judge was under the impression that the
application
for bail could be renewed because she said that she was
not satisfied that the appellants could be released on bail ‘at
this
stage’. On a conspectus of the judgment as a whole it
seems that what the learned judge had in mind was that the appellants
could produce further evidence concerning their assets – the
only matter that she dealt with in her judgment. Her judgment
boils
down to this: she was not satisfied that the appellants were not a
flight risk because they did not have sufficient assets.
Ahmed, who
had sufficient assets, was held not to be a flight risk for that
reason only.
[19] The proper route to have followed would have been
to allow the matter to stand down – as requested by counsel –
or to postpone the bail application. However, what the court failed
to consider is that the personal circumstances of an accused
–
much more than assets – determine whether the accused is a
flight risk. The court knew that the second appellant
had three
children, one of 18 months, that her husband lives and work in the
country and that she is still employed in some or
other position in a
master’s office. These facts, in my view, if taken into
account, would have satisfied that she was not
a flight risk.
Although not as strong a case could be made out for the first
appellant, his personal circumstances are such that
he, too, could
hardly be seen as a flight risk.
[20] That is not the end of the matter. One has to
consider the seriousness of the crimes and the possible length of
incarceration.
As counsel for the state conceded, there is a real
likelihood that the second appellant might have served her full
sentence by
the time the appeal is finalised. This means that unless
she is released on bail her appeal may become academic. It is
different
with the first appellant. He was sentenced to an effective
period of ten years’ imprisonment for having stolen, in his
position
as Master, over a period of more than a year a sum in excess
of R1million from the Guardian Fund and government. There is no
likelihood
that his ultimate sentence will be reduced to less than
three years. In the light of this it would not be appropriate to
grant
him bail.
[21] The following order is made:
1. The appeal of the first appellant is dismissed.
2. The appeal of the second appellant is upheld. The
order of the court a quo with regard to her is set aside and replaced
with
the following:
(a) Bail consisting of the amount of R25 000 is
granted to
TLALENG ALINA MHLEKWA
subject thereto that she:
(i) furnish the Registrar of the North-West High Court
Mahikeng and the Director of Public Prosecutions, North-West,
Mahikeng, with
her full residential and postal address as well as of
the address of her attorney of record; and
(ii) deliver the Notice of Appeal to the Full Bench
within twenty (10) days of this order, as required in
Rule 49(2)
and
(3) of the Uniform Rules.
(b) has to, within twenty (20) days after receipt of a
copy of the record of the trial proceedings from the aforesaid
Registrar
in accordance with the provisions of Rule 49A of the
Uniform Rules apply to the aforesaid Director of Public Prosecutions,
to set
a date for the hearing of the appeal as required in Rule
49A(2);
(c)
TLALENG ALINA MHLEKWA
has to at least twenty
(20) days before the date for the hearing of the appeal deliver her
Heads of Argument in accordance with
the provisions of Rule 49A(3) of
the Uniform Rules.
(d)
TLALENG ALINA MHLEKWA
has to within
seventy-two (72) hours of service of an order to surrender
contemplated in Section 307(3)(b) read with
Section 321(2)
of the
Criminal Procedure Act, No. 51 of 1977
, in the manner prescribed by
the Uniform Rules on her at her residential address referred to in
(a)(i).
(e) If
TLALENG ALINA MHLEKWA
should fail to
comply with the provisions of paras (b), (c) and (d), bail shall be
provisionally cancelled and the bail money provisionally
forfeited
and a warrant for her arrest shall be issued.
___________________
L T C Harms
Acting President
APPEARANCES
APPELLANT/S C J Zwiegelaar (Me)
Instructed by Smit Stanton Incorporated, Mahikeng
Naudes Attorneys, Bloemfontein
RESPONDENT/S: M G Ndimande
Instructed by The Director of Public Prosecutions,
Mmabatho
The Director of Public Prosecutions, Bloemfontein
1
Suid-Afrikaanse
Strafproses
(Kriegler and Kruger 6 ed)
p 888.