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[2022] ZAECMKHC 54
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Tshisani v S (CA&R 129/22) [2022] ZAECMKHC 54 (30 August 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MAKHANDA]
CASE NO.: CA&R
129/22
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED
In the matter between:
MNYAMEZELI GILBERT
TSHISANI
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL JUDGMENT
NORMAN J:
1.
This is an appeal against the refusal by
the Magistrate sitting in Makhanda to admit the appellant to bail.
The appeal is opposed
by the respondent.
2.
The respondent preferred four charges
against the appellant, namely, trespassing, two counts of theft, and
one count of being found
in possession of suspected stolen property.
The respondent alleged that the appellant, without permission,
entered St. Andrews
College premises and stole a Mac Book valued at
R18
000.00, a
citizen watch worth R7211.00 and was also found in possession of a
suspected stolen laptop bag embossed
“Graeme
College”
.
It is further alleged that the
unlawful actions of the appellant were captured on a CCTV camera
footage. The appellant was apprehended
and the watch was allegedly
recovered from him. The MacBook has not been recovered and two cell
phones were found in the laptop
bag. Both the appellant and the
respondent tendered their evidence by way of affidavits.
Appellant’s case
3.
In his affidavit, the appellant stated
that: He is 63 years old and resides at No. [....] N[....] Street,
Extension 9, Makhanda
and has been residing at that address since
2009. He was working in Cape Town but retired in December 2021. He is
married with
children who are now adults. His children reside in Port
Elizabeth with their mother.
He
is currently separated from his wife
.
He receives old age grant but also generates income by repairing cell
phones and restoring CCTV cameras. He disclosed his previous
convictions which were all related to the charges pending against
him. The convictions are: trespassing in 2009 in Stellenbosch;
theft
in Makhanda in 2010, theft in Stellenbosch in 2012 and shoplifting in
2016 in Somerset West.
He has no other pending criminal
cases. He intends to plead not guilty to the charge against him. He
would be able to afford bail
in the amount of R 1000 and undertook
not to interfere with the state witnesses or with the police
investigations. He undertook
to stand his trial as he had no
outstanding warrants. He does not possess a passport and does not
have relatives outside the borders
of South Africa and he undertook
to abide the bail conditions should they be imposed by the court. He
requested that he be released
on bail due to ill health. He suffers
from ulcers which cause him to vomit and he had been vomiting since
the day of his arrest.
Respondent’s
case
4.
The respondent tendered the evidence of the
Investigating Officer Mr Torsen Cangweni. He stated that: There is a
strong case against
the appellant because the commission of the
offence was recorded on a video footage from the school. A watch that
was also stolen
was found in the appellant’s possession and was
returned to the owner. The appellant was carrying a bag with two
mobile phones
inside. He confirmed the previous convictions referred
to, above. The appellant was targeting schools. The previous
convictions
indicated the appellant’s tendency to enter and
steal from people’s properties. There were ongoing
investigations regarding
the laptop bag. On 12 July 2022 the
headmaster of St. Andrews College received a report of theft that
occurred the previous day.
The appellant was identified by the
clothes he was wearing, by one student, on the video footage. The
headmaster looked for him
and found him in the building and that was
when the missing watch was found on him. The appellant has been in
custody since 12
July 2022.The investigating officer, submitted that,
based on the factors dealt with, above, it would not be in the
interests of
justice to admit the appellant to bail.
The charges
5.
Both the State and the defense counsel, at
the bail hearing , were
ad idem
that the offences fell under Schedule 5, because the appellant had
previous convictions. Whilst preparing this judgment I observed
that
there was no reference at all to Schedule 5 on the charge sheet. I
accordingly requested the parties to address me on the
issue by
either making submissions or placing before me relevant authorities.
6.
I am grateful to them for responding to the
request promptly. What is apparent from the further submissions from
the parties is
that there was agreement between the parties that
Schedule 5 was applicable and that a greater onus was placed on the
appellant
to satisfy the court that it was in the interests of
justice to release him on bail.
7.
I find it apt to deal with this issue
because, although it is not a ground of appeal, it is apparent from
the record. The charge
sheet mentions only the charges as mentioned
in paragraph 2, above. It makes no reference to Schedule 5 at all. A
form entitled
“
First Appearance:
Court A”
recorded matters such
as, language of choice, legal representation, rights relating to
access to police docket, whether bail is
opposed or not and whether
the accused person elects to bring a formal bail application etc. It
also dealt with various matters.
8.
I shall record only those aspects from the
form that are relevant herein:
“
E.
Prosecutor informs Court that the State:
Does not oppose the
release of the accused: [on warning []on bail, and informs the court
that the accused is facing a charge under
Schedule 1 of the Act. The
provisions of section 60 (11) (B) of Act 51 of 1977 applied as per
Annexure, and it is ordered that
it be filed separately from the case
record in accordance with the provisions of Section 60 (11) (B) (c)
of Act 51 of 1977 as amended….
✔︎
Opposes
the release of the accused from custody on the
following grounds:
Has previous
conviction of Theft…”
9.
The respondent
is obliged to formulate a charge sheet in a manner that sufficiently
informs an accused person about the relevant
provisions of the Act
that the respondent will invoke in supporting the charges against
him. I am mindful of the fact that the
appellant was legally
represented. However, that does not relieve the respondent of its
responsibility in this regard. The legal
knowledge of the legal
representatives does not supplant the contents of the charge. I do
not suggest that the respondent must
place in the charge sheet each
and every section of the Act that is relevant to the charge. That
would place a very onerous burden
on the respondent. However, the
invocation of Schedule 5 to apply to a charge that falls under
Schedule 1 or 2 has great significance
in that it has a bearing on:
(a)
one of the
fundamental rights of the accused (although not absolute), such as
his liberty and the greater onus it places on him
in bail
proceedings;
(b)
the
offence itself because it leads to a re- categorization of what was a
schedule 1 offence to a Schedule 5 offence, being a serious
offence;
(c)
the sentence
to be imposed;
(d)
the criminal
proceedings relating to both bail and trial; and
(e)
the accused
person’s previous convictions which receive consideration
before the commencement and conclusion of a trial. It
is as a result
of all the above mentioned factors that an applicable Schedule should
be mentioned in the charge sheet to ensure
fairness of a trial. This
ought to apply whether or not an accused person is legally
represented. Afterall the charge is against
the accused and not his
or her legal representative.
10.
In
S
v Legoa
[1]
the
Supreme Court of Appeal in dealing with an accused’s right to a
fair trial stated:
“
[20]
…. This right, the Constitutional Court has said, is broader
than the specific rights set out in the sub- sections of
the Bill of
Rights’ criminal trial provision. One of those specific rights
is
‘to be informed of the
charge with sufficient detail to
answer it’
.
What the ability to ‘answer ‘a charge encompasses this
case does not require us to determine…But under the
constitutional dispensation it can certainly be no less desirable
than under the common law that the facts the State intends to
prove
to increase sentencing jurisdiction under the 1997 statute should be
clearly set out in the charge sheet.”
(my
emphasis)
.
11.
In
my view, once the provisions of Schedule 5 are invoked, having regard
to all the consequences they bring to the charge, their
inclusion in
the charge sheet to ensure a fair trial, is imperative. The oral
mention of the applicability of Schedule 5 to a particular
offence at
a stage when an accused applies for bail is, in my view, not
sufficient to meet the fair trial right.
In
casu
, the issue of unfairness does not arise
[2]
because of the agreement between the parties. However, the remarks
made by the Supreme Court of Appeal in
S
v Khoza and Another
2019 (1) SACR 251
(SCA)
at
paragraph [10], that : “ … As a general rule, fair –
trial rights require that an accused person should be
informed at the
outset of the trial of the provisions of the Minimum Sentences Act (
or other provisions relating to an increased
sentencing regime) that
the state intends to rely upon or which are applicable. The accused
person should generally be so informed
in the indictment or charge
sheet; by notification by the presiding officer or in any other
manner that effectively conveys the
applicable provisions to the
accused person before or at the commencement of the trial…”,
find application.
Grounds
of appeal
12.
The appellant advanced the following
grounds of appeal: The Magistrate failed to properly consider his
personal circumstances; the
fact that he is 63 years old, and suffers
from ulcers; he has a fixed address in Makhanda where his family
resides and has resided
at that address for many years. The court
erred in its finding that the refusal of bail is in the interests of
justice.
The
court overemphasized the fact that the appellant has similar previous
convictions. The Magistrate ought to have found that the
appellant
discharged the onus resting on him.
13.
Mr Geldenhuys submitted that:
The previous convictions occurred between the years 2009 and 2016 and
no violence was involved.
The
court erred in criticizing the appellant for his failure to testify.
The fact that the appellant had a fixed address, where
he lived for
many years with his family, should have moved the court to release
him on bail. His ill health and advanced age should
have been
considered in his favour. It is not in the interests of justice to
refuse to release him on bail.
14.
Ms van Rooyen, on the other hand,
submitted that: The fact that the appellant is elderly is not a
deciding factor because that must
be balanced with the crimes he is
charged with.
The
previous convictions have not deterred the appellant from breaking
the law again. The appellant has a propensity to invade and
steal
from schools. It will not be in the interests of justice to release
him.
Discussion
15.
Section 60 of the Criminal Procedure Act
provides:
“
60
Bail application of accused in court
1(a)An accused who is
in custody in respect of an offence shall, subject to the provisions
of section 50 (6),
be
entitled to be
released on bail at any stage preceding his or her conviction in
respect of such offence, if the court is satisfied
that the interests
of justice so permit.”
16.
Section 60 (11) of the Act provides:
“
(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;
(b)
in Schedule 5, but not 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 the interests of justice permit his or her release.”
(
my underlining
)
17.
Schedule 1 lists “
Theft, whether under the common law or a
statutory provision
”. Similarly, Part I and Part II of
Schedule 2 lists: “
Theft, whether under the common law or a
statutory provision ,
and “
Theft, whether under the
common law or a statutory provision, receiving stolen property
knowing it to have been stolen, fraud, forgery
or uttering a forged
document knowing it to have been forged, in each case if the amount
or value involved in the offence exceeds
R2 500”,respectively.
18
.
Schedule 5 lists, amongst others: “An offence referred to in
Schedule 1-
(a) and the accused
has previously been convicted of an offence referred to in Schedule
1; or
(b) ….”
19.
Section 60 (11) (B) compels an accused person or his legal
representative to disclose whether
he has previous convictions or
pending charges against him or her and whether he has been released
on bail in respect thereof.
20.
Section 60(4) provides for factors that a
court has to consider in determining whether or not it is in the
interests of justice
to have an accused person released on bail.
21.
Section 60(4) provides:
‘
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 a 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 a likelihood that the
accused if she or he were released on bail, will attend to evade his
or her trial; or
(c)
Where there is a 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 a likelihood that the
accused, if he or she were released on bail, will undermine or
jeopardize the objectives or
the proper functioning of the criminal
justice system, including the bail system; or
(e)
Where in exceptional circumstances
there is a likelihood that the release of the accused will disturb
the public order or undermine
the public peace or security.’
22.
In considering the ground in section 60
(4)(a), the Act makes provision for other factors, that the court,
in
order to satisfy itself that for the
grounds
in (4)(a) have been established, must consider. Those are provided
for in section 5 (a) – (h) and are not relevant
for the
purposes of this judgment.
23.
The legislature also deemed it
appropriate to make provision for factors that a
court
must consider in deciding the interests of justice and in particular,
whether or not there is a likelihood that the accused
person will
evade his or her trial as provided for in section 60 (4)(b). Those
factors are provided for in section 60 (6).
24.
These are factors that must be taken into
account by the court because that is what the legislature enjoins the
court to do. It
follows therefore that it is incumbent upon the court
to make the enquiry in so far as, for example, the provisions of
section
60(4) (b) are concerned and enquire from the accused persons
directly about those factors that it might have to consider in its
decision on whether or not to grant bail or even call for additional
information, if it so wishes. That obligation is not imposed
on an
accused person but on the court itself.
25.
The Magistrate in his judgment stated that
he considered, amongst others, the appellant’s age, his state
of health and other
factors as stated in section 60 of the Act. He
made the following remarks which, for the purposes of this judgment,
are relevant:
‘
it
is mentioned in his statement, all sorts of things and is unfortunate
that the accused chose not to testify verbally and not
being tested
by cross-examination. It is unfortunate also, that he states in his
statement that he intends to plead not guilty
but just leaves it at
that. There is a case against him. I mention once in a bail
application, that there is a strong case and
it does not mean –
I do not mean that the case is very strong, I just mean that there is
a sufficiently strong case for the
accused to answer and there is
some claims against him. He must respond to those. So keeping in mind
that he does not have to incriminate
himself. He is not compelled to
incriminate himself, well if he pleads not guilty then I am assuming
there is a defence yet, he
chose not to disclose the defence. So
unfortunately then there is nothing to be considered in his favour in
this regard.’
26.
The Magistrate also found that there was
nothing compelling in the personal circumstances of the appellant to
warrant his release
on bail. He considered the fact that the
appellant had previous convictions and found that he had a propensity
to engage in criminal
activity. He also found that the appellant had
no problem entering people’s property, without their consent
and invading
their privacy. He found that the state has a strong case
against the appellant. He also found that the interests of justice
dictate
that bail should not be granted and he accordingly refused
bail.
27.
First, the findings by the Magistrate that
‘
it is unfortunate that the
accused chose not to testify verbally and not being tested by
cross-examination. It is unfortunate also,
that he states in his
statement that he intends to plead not guilty”
and
his finding that because the appellant failed to disclose his defense
, that meant that there was nothing to consider in his
favour is,
with respect, contrary to the Bill of Rights , in particular ,
section 35 (3) that provides :
“
Every
accused person has a right to a fair trial, which includes the right-
(h) to be presumed
innocent, to remain silent, and not to testify during the
proceedings”
28.
A
bail application is not meant to assess the soundness or lack thereof
of an accused person’s defense to the criminal charges.
In this
particular case, the investigations were still ongoing and it would
be unfair to expect the appellant to tender a defense
for the
purposes of bail. He indicated that he was going to tender a plea of
not guilty at trial. In any event, the accused’s
defense is not
a factor enumerated in section 60 (4) The main purpose of bail
proceedings, is for the court, to examine whether
the accused person
will stand trial and whether it is in the interests of justice to
release him on bail. The bail proceedings
cannot be used to undermine
the accused person’s constitutional rights. I accordingly find
that the Magistrate in reaching
the above findings, wrongly exercised
his judicial discretion.
[3]
29.
Section 65 (4) of the Act provides that:
“
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
.”
30.
It
is trite that once a misdirection is apparent from the record either
on the findings of fact or law , this Court , is at large
to
interfere with the decision of the Magistrate.
[4]
It is apparent that the Magistrate failed to weigh and balance all
the factors before dismissing the appellant’s bail application.
The balancing act enjoins a court to look at both the favourable and
unfavourable factors. That exercise does not envisage a total
disregard of the favourable factors simply because an accused person
has failed to disclose his defense, as found by the Magistrate.
The
finding in this regard constitutes a misdirection.
31.
The record demonstrates clearly that
the Magistrate did not apply himself to the issue of whether or not
the appellant would stand
trial. This is an important consideration
and is inextricably linked to bail. The respondent did not adduce
evidence that the appellant
was a flight risk. Failure to consider
this factor, with respect, constitutes a misdirection on the part of
the Magistrate. In
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC) at para 11
,
the
Constitutional Court restated
the purpose of a bail enquiry as follows:
“
Furthermore,
a bail hearing, is a unique judicial function…Also, although
bail, like the trial, is essentially adversarial,
the inquisitorial
powers of the presiding officer are greater. An important point to
note here about bail proceedings is so self-evident
that it is often
overlooked. It is that there is a fundamental difference between the
objective of bail proceedings and that of
the trial . In a bail
application the enquiry is not really concerned with the question of
guilt. That is the task of the trial
court. 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.”
32.
If a misdirection is established, the
appeal court is at large to consider whether bail ought, in the
particular circumstances,
to have been granted or refused. In the
absence of a finding that the Magistrate misdirected him or herself
the appeal must fail
(cf.S v Porthen and
Others
2004 (2) SACR 242
( C) at para [11]; referred to in Sv
Panayiotou 2015 JDR 1532 (ECG) para [27])
33.
In the light of my findings, the
decision of the Magistrate refusing bail cannot stand and is liable
to be set aside.
34.
I accordingly make the
following Order:
1.
The appeal is upheld.
2.
The order of the
court
a quo
is set aside and replaced
with the following:
“
The
applicant’s application for bail is granted. The applicant’s
release on bail is subject to the following conditions:
(a)
The payment of the amount of R1000.
(b)
The applicant is prohibited from
entering any of the schools in Makhanda.
(c)
The applicant shall report to the
Makhanda Police Station between 09h00 and 16h00 on Wednesday each
week.”
T.V. NORMAN
JUDGE OF THE HIGH
COURT
Appearances
DATE OF THE HEARING:
25 AUGUST 2022
DATE OF JUDGMENT : 30
AUGUST 2022
For the Appellant:
Adv.
Geldenhuys
Legal Aid South Africa
Makhanda Local Office
69 High Street
Makhanda
For the
Respondent: Adv. Van Rooyen
The Office of the
Director of Public Prosecutions
Makhanda
[1]
2003
(1) SACR 13
(SCA) at [20].
[2]
S
v Ndlovu
2003 (1) SACR 331
(SCA) para 14
[3]
S
v Barber 1979 (4)SA 218 (D) at 220 E-H
[4]
S
v M
2007 (2) SACR 133
(E)