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[2022] ZAFSHC 339
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Sibiya v S (A150/2022) [2022] ZAFSHC 339 (30 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A150/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the Appeal between:
MILTON
SIBIYA
Appellant
and
THE
STATE
Respondent
HEARD
ON:
04
NOVEMBER 2022
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14h00 on 30 November 2022.
[1]
The appellant is a pastor
(prophet) of the church known as Redeeming Embassy. He was arrested
on 9 December 2021 for the rape of a fifteen (15) year old child in
contravention of section 3 of the Criminal Law Amendment Act
(Sexual
Offences and Related Matters) 32 of 2007 read with of section 51 (1)
of the Criminal Law Amendment Act 105 of 1997 (“
The CLAA
”).
[2]
At all material times hereto the complainant was a member of the
appellant’s
church. It is the State’s case that the
appellant raped the complainant from April 2016 to July 2021 at the
church, under
the guise of providing her with counselling. The rapes
started when the complainant was nine years old, the last incident
took
place at the complainant’s home outside the backroom.
[3]
On 22 December 2021 the appellant launched an application to be
released on bail in
the magistrates’ court for the district of
Lejweleputswa. Magistrate van Rensburg dismissed the application on
12 January
2022 on the grounds that the appellant failed to prove any
exceptional circumstances justifying his release on bail. His
subsequent
bail on new facts suffered the same fate two months later
on 24 March 2022.
[4]
In the court
a
quo,
it
was common cause that the offence which the appellant is charged with
falls within the offences listed under schedule 6 of the
Criminal
Procedure Act
[1]
(the “CPA”)
and that given its nature, the appellant was not entitled to be
released from custody pending trial, unless
he adduced evidence which
proves on a balance of probabilities that exceptional circumstances
exist which in the interests of justice
permit his release on
bail.
[2]
[5]
The appellant is aggrieved by the magistrate’s refusal to admit
him to bail.
He appeals to this court by virtue
of
section 65(1)(a) of the CPA which provides that:
“
An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by the imposition by such court
of a
condition of bail, including a condition relating to the amount of
bail money and including an amendment or supplementation
of a
condition of bail, may appeal against such refusal or the imposition
of such condition to the superior court having jurisdiction
or to any
judge of that court if the court is not then sitting.”
[6]
The principles applicable in appeals where the decision by a lower
court to admit
an accused to bail is attacked, are now established.
In terms of section 65 (4) of the CPA:
“
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.”
[7]
The
onus is on the
appellant
to persuade this court that the magistrate’s decision to refuse
bail was wrong. In
S
v Barber
[3]
it was
pointed out by Hefer, J that:
“
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. 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 review for that of the magistrate because that would be
an unfair
interference with the magistrate’s exercise of its discretion.
I think it should be in 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 but
exercised that discretion wrongly.”
[8]
In the grounds of appeal, the appellant attacks the magistrate’s
decisions for
refusing both the initial bail and the bail on new
facts. At the hearing of this appeal the appellant abandoned the
appeal against
the dismissal of the initial bail application, the
appeal proceeded against the refusal of the appellant’s renewed
bail on
new facts.
[9]
The new facts upon which the bail on new facts was predicated were
essentially that
there is a likelihood that the appellant will be
acquitted at the trial as the State’s case against him is weak
and this
fact, taken cumulatively with his personal circumstances
constitutes exceptional circumstances which in the interests of
justice
permit his release on bail pending trial.
[10]
In the court
a
quo,
the appellant testified in support of his bail application and also
called six witnesses who are also members of his church
namely,
Relebohile
Patana (referred to as “Refilwe”), Nthabiseng Carol
Mokoena (Nthabiseng), Ivy Mosenyehi Mokoena, Nthabiseng
Gladys
Masenkane and Poppy Thito. The witnesses confirmed the appellant’s
assertion that the complaint’s allegations
are false.
[11]
Relebohile, Nthabiseng and Ivy even went further to state that
investigating officer had approached
them enquiring whether they were
also raped or sexually assaulted by the appellant and when they
denied the allegations the investigating
officer was sceptical and
promised to protect them if they disclosed what the appellant did to
them. Nthabiseng is also the
complainant’s former best,
she told the court that the complainant had in fact told her that she
(the complainant) was going
to open a rape case against the appellant
and that certain people will approach her (Nthabiseng) regarding the
complainant’s
allegations and she must not only confirm them
but also tell those people that the appellant had also raped and
sexually assaulted
her.
[12]
The court
a quo
was implored to grant bail as the appellant’s
incarceration was not only detrimental to his family but to the
church and the
community at large. It was explained to the court that
the appellant
is
the sole
breadwinner, his wife was pregnant, unwell, unemployed and on the
verge of being evicted from their rented home due to
unpaid rent.
Prior to his arrest, the appellant was also providing
spiritual
and financial assistance to the church members and the community, he
was their “beacon of hope.”
[13]
It was thus
submitted
that the cumulative effect of these circumstances rendered them
“exceptional” for the purpose of justifying
the
appellant’s release on bail.
[14]
On the other side c
onstable
Molete, the investigating officer in this matter testified in
opposition of bail arguing that the appellant was not a candidate
for
pre-trial release on bail. Her view was based on the fact that the
evidence implicating the applicant is overwhelming therefore
there is
a likelihood that if he is released on bail he will evade trial. She
told the court that the appellant is also likely
to interfere with
the State witnesses as he has already threatened a State witness. He
has the propensity to commit similar offences
because at the time of
the bail application he was out on bail in relation to another rape
charge involving a congregant of his
church. There were also two
additional sexual offences cases reported against him and more
victims were coming forward.
[15]
In this appeal, the argument
advanced on behalf of the appellant in support of his contention that
magistrate’s decision was
wrong is that: the magistrate
considered the appellant’s personal circumstances on a
piece-meal basis instead of taking them
cumulatively with the
weakness of the State’s case to conclude that they do not
constitute exceptional circumstances. The
magistrate also overlooked
the evidence of a conspiracy to falsely implicate the appellant.
[16]
It is further submitted that the magistrate was biased against the
appellant, he conducted the
bail hearing as a trial and made a
determination on the appellant’s guilt. His remark that “
there
is enough evidence before the court at this stage, in terms of
section 64(a)
(sic)
to make a finding that if the applicant is
going to be released on bail, it is a real, and I repeat, a real
likelihood that he will
indeed proceed with his sexual conduct
against women and childr
en” proves that he has already
concluded that the appellant committed these offences.
[17]
It is the appellant’s case that there was evidence that the
investigating officer went
about recruiting victims to open cases
against the appellant and also coerced witnesses to change their
statements to align them
with the complainant’s statement but
the magistrate praised her instead of reprimanding her for the manner
in which she conducted
the investigation.
[18]
The magistrate is also criticized for failing to take into account
that the addition of further
charges will delay the matter.
[19]
On the contrary, the State persisted with the argument that the
appellant failed to discharge
the onus of proving that exceptional
reasons are present to warrant his release on bail, the appeal ought
to be dismissed.
[20]
In the record of the proceedings it is clear that the learned
magistrate had duly considered
the appellant’s personal
circumstances and the strength of the State’s case. In his
ruling he took into account that
the appellant’s criticism of
the veracity of the State’s case was merely premised on the
assertion that the allegations
of the complainant pertaining to the
rape have been gainsaid by the appellant’s witnesses therefore
she is not trustworthy
and concluded that this argument is flawed as
the credibility of the complainant can only be judged at the trial.
The magistrate
consequently concluded that on the available evidence
prima facie
, the State has a strong case against the appellant
and the appellant’s personal circumstances on their own, do not
constitute
exceptional circumstances to justify his release on bail.
[21]
I am unable to find that the magistrate was wrong in his conclusions
in this regard. It is trite
that the weakness of the State’s
case can be construed as “exceptional circumstances” as
provided for in section
60 (11) (a) of the CPA justifying the
appellant’s release on bail pending trial. The onus is on the
appellant to adduce evidence
which proves on a preponderance of
probabilities that he will probably be acquitted at the trial.
[4]
[22]
The fact that the defence and the State’s evidence is mutually
destructive does not necessarily
entail that the State’s case
is tenuous with the result that the State will be unable to prove the
appellant’s guilt.
The assessment of the credibility of all
witnesses, the reliability of their evidence
as
well as the probabilities accorded to such testimony
is
the task of the trial court
.
[5]
A bail
enquiry is not the forum where the credibility of witnesses is
evaluated. All that has to be determined is the
prima
facie
guilt
“to the extent that it may bear on where the interests of
justice lie in regard to bail.”
[6]
I am not
disregarding the probability that the appellant may be falsely
implicated but that issue as well can only be judged when
the State’s
case has been put to the test. On this basis, it cannot be said
that the appellant had discharged his onus
of proving that he was
likely to be acquitted at the trial.
[23]
Taking into consideration the strength of the State’s case, the
appellant’s personal
circumstances had to be weighed against
the interests of justice which require the appellant to stand his
trial and not interfere
with the state witnesses.
[24]
In this matter, the
magistrate’s
findings alluding to the presence of the circumstances contemplated
in section
60(4)(a)
to (c) of the CPA
[7]
are
indisputable namely that:
24.1.
there was a likelihood that if released on bail the appellant will
commit schedule 1 offences because at the time of the bail
application he was on bail for another rape charge perpetrated under
similar circumstances and there were at least two further
sexual
assault cases registered against the appellant which speaks to his
propensity to commit similar crimes;
24.2.
the probability of being sentenced to life imprisonment if convicted
could
influence the
appellant to evade trial; and
24.3.
based on his alleged prior conduct of threatening a witness, he may
interfere with the state witnesses.
[25]
The interests of justice do not permit the release of an accused on
bail where the above-mentioned
factors prevail. The appellant’s
personal circumstances are outweighed
by
possibility that he might evade trial or intimidate the witnesses.
[26]
I now turn to the further issues raised by the appellant. There is no
merit to the appellant’s
contention that the magistrate
conducted the bail hearing as a trial. In the record of the
proceedings, from page 56 onwards it
is clear that it was the
appellant through his legal representative who delved into the merits
of the case prompting the State
to object and the magistrate to
question the relevance of that evidence.
[27]
Similarly, the allegation of bias levelled against the magistrate for
his finding that if the
appellant is released on bail he “would
proceed with his sexual conduct…” is unwarranted.
Section 60 (5) (e)
of the Act enjoins the court to take into account
evidence of an accused’s disposition to commit a schedule 1
offence including
previously committed related offences when
considering whether the interests of justice would not be undermined
if an accused is
released on bail.
[28]
There was nothing untoward about the conduct of the investigating
officer. The appellant deliberately
ignores the fact the testimony of
his witnesses merely revealed that the investigating officer offered
them protection in the event
they feared to disclose if they were
raped or sexually assaulted. I cannot find any evidence of
clandestine investigative methods
which would have warranted the
magistrate’s censure.
[29]
It is indisputable that all the charges laid against the applicant
have since been consolidated,
the probability of the trial being
delayed is minimal.
[30]
Having regard to the facts of this matter, I am not persuaded that
the magistrate exercised his
discretion wrongly in refusing the
appellant’s bail. There is thus no basis to overturn the
decision of the magistrate, the
appeal must accordingly fail.
ORDER
[31]
In the premises, I make the following order:
1.
The
appeal against refusal of bail is dismissed.
NS
DANISO, J
On
behalf of appellant: Mr
Matee
Instructed
by: Matee
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv.
Hoffman
Instructed
by:
Director: Public Prosecutions
BLOEMFONTEIN
[1]
Act 51 of 1977.
[2]
Section 60 (11) (a) of
the CPA.
[3]
1979 (4) SA 218
D
at
220
E–H.
[4]
S v Mathebula
2010
(1) SACR 55
(SCA)
at 59 para 12.
[5]
See
Stellenbosch
Farmers’ Winery Group Ltd & Another v Martell ET Cie and
Others
2003
(1) SA 11
(SCA).
[6]
S
v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)
para 11.
[7]
Page 202 to 204 of the record of the
proceedings.