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[2022] ZAECMKHC 116
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Cele v S (CA&R 38/2022) [2022] ZAECMKHC 116 (7 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CA&R 38/2022
In
the matter between:
ELIAS
CELE
Appellant
and
THE
STATE
Respondent
JUDGMENT
LAING J
[1]
This is an appeal against the refusal of
the magistrate for the East London Regional Court to grant bail to
the appellant, pending
the finalisation of his criminal trial.
[2]
The bail application is premised on the
argument that the magistrate found that the appellant is charged with
an offence listed
in Schedule 5 of the Criminal Procedure Act 51 of
1977 (‘the CPA’), instead of Schedule 1. Furthermore, it
is premised
on the assertion that the magistrate failed to attach due
weight to the personal circumstances of the appellant, including the
interests of his minor children; that the appellant’s evidence
stood unchallenged at the end of his case; that his evidence
in
relation to the likelihoods set out in section 60(4) of the CPA was
not challenged; that the magistrate erred in failing to
find that the
investigating officer’s reasons for opposing bail were
spurious; that the magistrate erred in finding that
he was a flight
risk, that he would influence or intimidate state witnesses, that he
would attempt to evade trial, that he would
commit a Schedule 1
offence, and that the interests of justice did not permit the
appellant’s release on bail.
[3]
The
appellant has been charged with fraud. There was a dispute at the
commencement of the bail application about the exact nature
of the
charge and under which Schedule of the CPA it fell to be included.
The relevance of this was that whether it was a Schedule
1, 5 or 6
offence would determine where the onus of proof lay in relation to
the basis upon which bail should be granted or refused.
[1]
Ultimately, the court
a
quo
found that it was a Schedule 5 offence, thereby placing the onus on
the appellant in terms of section 60(11)(b) to adduce evidence
to
demonstrate that the interests of justice permitted his release.
[4]
It
was argued on the appellant’s behalf that there was no reason
for the court
a
quo
to have found that the matter pertained to a Schedule 5 offence. The
charge sheet simply referred to fraud, with no further
elaboration.
[2]
When the
appellant’s legal representative requested a copy of the
complete charge sheet, counsel for the state refused, saying
that the
case was still under investigation.
[5]
The provisions of section 35(1)(f) and
sub-section (3)(a) of the Constitution are pertinent, which provide
as follows:
(1)
Everyone who is arrested for allegedly
committing an offence has the right—
(a)
–
(e) …
(f)
to be released from detention if the interests of justice permit,
subject to reasonable conditions.
(2)
…
(3)
Every accused person has a right to a fair trial, which includes the
right—
(a)
to be informed of the charge with
sufficient detail to answer it…
(b) - (o)
…
[6]
Furthermore, section 84(1) of the CPA deals
with the essentials of the charge. The text reads:
(1)
Subject to the provisions of this Act and of any other law relating
to any particular offence,
a charge shall set forth the relevant
offence in such manner and with such particulars as to the time and
place at which the offence
is alleged to have been committed, as may
be reasonably sufficient to inform the accused of the nature of the
charge.
[7]
It is trite that the right to a fair trial
extends to the proceedings in a bail application. The accused must
know precisely what
charge has been brought against him or her so
that he or she can respond thereto for purposes of enabling the court
to determine
whether the interests of justice permit release.
[8]
In
R v
Alexander and others
1936 AD 445
,
Wessels J remarked as follows, at 457:
‘
What
is the object of an indictment? Its real purpose is to inform the
accused in clear and unmistakeable language what the charge
is or
what the charges are which he has to meet. It must not be framed in
such a way that an accused person has to guess or puzzle
out by
piecing sections of the indictment or portions of sections together
what the real charge is which the Crown intends to lay
against him.’
[9]
The principles reflected above have
survived and remain applicable. See, for example,
S
v Hugo
1976 (4) SA 536
(A), at 540E;
and more recently,
Levenstein v S
[2013] 4 All SA 528
(SCA), at [98].
[10]
Within
the context of the lower courts, the starting point is the charge
sheet.
[3]
If there are further
details in relation to the offence indicated on the charge sheet,
then these must be conveyed to the accused
prior to the commencement
of the bail application proceedings so that he or she can answer
them. The nature of the charge must
be sufficiently clear for the
accused to deal with it properly before the hearing commences;
further details cannot be withheld
or sprung upon the accused at the
last moment.
[4]
[11]
In
S v
Msimango
2018 (1) SACR 276
(SCA),
Bosielo J observed, at [16], that:
‘
In
the language of s 35(3)(a), this is intended to enable… an
accused… to answer and defend himself or herself in
the
ensuing trial. Its main purpose is to banish any trial by ambush.
This is so because our criminal justice is both adversarial
and
accusatory.’
[12]
In the present matter, the information
contained in the charge sheet merely referred to fraud, nothing more.
Consequently, that
is the charge that the appellant was required to
have met. The court
a quo
was incorrect to have held that the offence fell under Schedule 5; on
its own, without further detail, it could only have fallen
under
Schedule 1.
[13]
Turning
to section 35(1)(f) of the Constitution, there is authority to the
effect that the onus remains with the prosecution in
all instances,
except those specifically mentioned in terms of section 60(11) of the
CPA.
[5]
See E du Toit (et al)
Commentary
on the
Criminal Procedure Act
(Jutastat
, RS 61, 2018), at ch9-p54H. If it was established, as
it ought to have been, that the offence did not fall under either
Schedule
5 or 6, then the state bore the onus to demonstrate that the
interests of justice did not permit the release of the appellant.
[14]
The pertinence of the interests of justice
appears from
section 60(4)
of the CPA. In that regard, the text
provides that the interests of justice do not permit the release of
an accused when one or
more of the grounds listed in sub-sections (a)
to (e) are established. The grounds are based on the likelihood of
certain events
occurring.
[15]
The following general observations about
section 60(4)
were made by Flemming DJP in
S
v Hudson
1996 (1) SACR 431
(W), at
433e-f:
‘
Considering
the granting of bail involves, as is well known, a balancing of the
interests of the administration of justice against
the wishes of the
accused. But that is, of course, not accurate. Those interests are
not fully in opposition. It is also to the
public good and part of
public policy that a person should enjoy freedom of movement, of
occupation, of association, etc. That
public interest is qualified,
when appropriate, in the interests of the administration of justice.
Secondly, considering bail involves
a balance between unequal
considerations. Risk of harm to the administration of justice
involves unquantifiable and unprovable
future possibilities. The
interests of the accused generally turn upon extant facts and
intentions. But it remains the chances
that the administration of
justice may be harmed which may justify the impact of detention
despite a pending appeal.’
[16]
More recently, the nature of the
interpretation to be given to
section 60(4)
was considered in
S
v Mwaka
2015 (2) SACR 306
(WCC), where
Le Grange J held, at [16], that
‘
[i]n
terms of
section 60(4)
… the basic principle in our law is that
bail ought to be granted… unless it is not in the interests of
justice.’
[6]
[17]
Turning to the grounds themselves, the
first concerns whether the appellant would endanger the safety of the
public or a particular
person or commit a Schedule 1 offence. From a
perusal of the record, there was simply no evidence to that effect.
It was alleged
that the appellant had hired a hitman to kill his wife
(his co-accused) but the source and precise details of such
allegation were
never disclosed; the court
a
quo
was correct in treating it as an
unfounded rumour. No evidence was presented by the state to indicate,
too, that the appellant
had a disposition towards violence. As a
youth, he had been convicted for the possession of dagga.
Furthermore, he had previously
been charged for the unlawful
possession of a firearm and also for malicious injury to property;
neither case appears to have been
finalised. Importantly, none of the
cases mentioned above convincingly disclosed a propensity for
violence. With regard to the
likelihood that the appellant would
commit a further Schedule 1 offence, no facts were placed before the
court
a quo
.
In the absence of evidence, for the state to suggest that because the
appellant is alleged to have committed numerous acts of
fraud he
would probably commit a further act of fraud upon his release amounts
to no more than speculation. The court
a
quo
was incorrect in having accepted
such argument.
[18]
The second ground pertains to whether the
appellant would attempt to evade his trial. The court
a
quo
held that he posed a flight risk.
This finding, however, does not properly take into his business
interests in East London, his
substantial property portfolio in
KwaZulu-Natal, his reputation as a successful business person, and
his extensive family network,
with numerous minor children for whom
he is the main breadwinner. Furthermore, reliance was placed on old
warrants of arrest that
had not yet been executed and with regard to
which the appellant had not yet been charged. There were at least two
warrants that
were more than ten years old and one that was more than
nine years old. The investigating officer explained that the police
were
unable to trace the appellant. In light of the uncontested
evidence that the appellant is a well-known business person in
Amamzimtoti
and that he owns a property that is situated a few
hundred metres away from the local police station, the explanation
given by
the investigating officer was improbable and ought to have
been rejected. In argument before this court, counsel for the state
conceded that he had no answer for why the police had not executed
the warrants in question. The court
a
quo
was incorrect in having declined to
exclude the outstanding warrants for purposes of deciding whether the
appellant would attempt
to evade his trial.
[19]
The third ground is whether the appellant
would attempt to influence or intimidate witnesses or conceal or
destroy evidence. There
is a slight overlap in relation to the first
ground, which has already been addressed insofar as it concerns the
alleged plot of
the appellant to kill his wife. Nothing further needs
to be said in that regard. However, in relation to the remaining
issues,
the court
a quo
merely made a general assertion to the effect that the appellant knew
the witnesses and accordingly there was a risk that he might
influence or intimidate them. No further details were mentioned, such
as the nature of his relationship with them, whether the
witnesses
had already made statements and agreed to testify, how familiar he
was with the evidence that was to be brought against
him, the extent
to which the witnesses could be influenced or intimidated, and so
forth. There was no evidence presented by the
state to raise the
likelihood that such event would occur to more than a remote
possibility. The court
a quo
was incorrect to have made a finding on the basis of speculation.
[20]
The fourth ground pertains to whether the
appellant would undermine or jeopardise the objectives or proper
functioning of the criminal
justice system. If it was considered at
all, then this ground was treated superficially at best. There was no
indication from the
record to suggest that he had supplied false
information, previously failed to comply with bail conditions, or
that there was evidence
of any similar conduct.
[21]
The fifth and final ground is whether, in
exceptional circumstances, the release of the appellant would disturb
the public order
or undermine the public peace. This ground, too, was
not adequately considered.
[22]
Ultimately, the state bore the onus. Very
little evidence was placed before the court
a
quo
to indicate that the likelihood
that the events listed in
section 60(4)
would occur was more than
mere speculation. Crucially, the legal representative for the
appellant argued that the latter’s
testimony was, in the main,
undisputed. From the record, it seems that the state was focused more
on the merits of the case than
the factors listed in
sections 60(4)
to (9) of the CPA. Consequently, the facts alleged by the appellant
must be accepted as true.
[23]
With specific regard to
section 60(9)
of
the CPA, a court is required to weigh the interests of justice
against the right of the accused to his or her personal freedom,
especially in relation to the prejudice that he or she would suffer
should he or she continue to be detained. In the present case,
the
record reveals that the appellant has significant business interests
that have already been affected by his incarceration,
threatening the
livelihoods of some 1,300 employees. More importantly, his
incarceration has a direct impact on his immediate and
wider family.
It was not disputed that he has at least six minor children who
depend upon him as the main breadwinner. His release
on bail would
enable him to address his business concerns and to provide for the
needs of his family, including his dependents.
[24]
In
the circumstances, this court is satisfied that the state failed to
discharge the onus and to demonstrate that the interests
of justice
did not permit the appellant’s release. With regard to the bail
amount, the legal representative for the appellant
submitted in the
court
a
quo
that his client could afford payment of R3,000. In argument before
this court, no further submissions were made on behalf of either
the
appellant or the state. Mindful of the appellant’s financial
standing, including testimony in relation to the scale of
his monthly
income at the time of his arrest,
[7]
the above amount is not appropriate. It would not be unfair to set
the amount at R10,000. Furthermore, given that his family and
occupational ties are not to the Eastern Cape and that his assets are
situated in KwaZulu-Natal, it would not be unfair to attach
stringent
conditions to the granting of bail.
[25]
Accordingly, the following order is made:
(a)
the appeal is upheld;
(b)
the order of the court
a
quo
is set aside and replaced with the
following:
(i)
the appellant’s application for bail
is granted and he is released on bail, pending the completion of his
trial;
(ii)
the following conditions apply:
(aa)
the appellant shall deposit the sum of R10,000 in accordance with the
provisions of
section 60(13)(a)
of the CPA;
(bb)
the appellant shall reside at the house situated at 2[…] I[…]
Road, Amamzimtoti;
(cc)
the appellant shall, not less than two (2) days prior to his
departure from KwaZulu-Natal for legitimate
purposes, notify the
commanding officer or a duly delegated member of his or her staff, in
person, at the police station in Amamzimtoti
and furnish to him or
her the details of his itinerary, including the duration of his
absence and his whereabouts for the period
in question, as well as
the cellphone number at which he can be contacted;
(dd)
the appellant shall report to the police station in Amamzimtoti
between the hours of 06h00 and
18h00, on the Wednesday of each week,
provided that he shall report to the nearest police station between
the same hours and on
the same day when outside KwaZulu-Natal for
legitimate purposes;
(ee)
the appellant shall notify the commanding officer or duly delegated
member of staff in (cc),
above, and the registrar of this court, in
writing, of any change in his residential address at least two (2)
weeks prior to any
such change;
(ff)
the appellant shall not influence, intimidate or harm any witness;
(gg)
the appellant shall report to the police station in Amamzimtoti
within 48 hours of a written
notice to that effect having been
delivered to his legal representative at the time, in the event that
he is convicted and sentenced
to a period of imprisonment;
(hh)
the appellant is prohibited from applying for and being granted a
passport for the duration of the
trial proceedings;
(iii)
a copy of this order must be provided to
the Director-General for the Department of Home Affairs.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCE
Attorney
for the appellant:
Mr Daubermann, instructed
by
Peter Daubermann Attorneys,
Gqeberha.
Counsel for the
respondent: Adv
Mati, instructed by the Office of the Director
of Public
Prosecutions, Makhanda.
Date of
hearing:
31 May 2022
Date of delivery of
judgment: 07 June
2022
[1]
If
the offence falls under Schedule 5, then the provisions of
section
60(11)(b)
indicate that the onus rests with the accused to
demonstrate that the interest of justice permit his or her release.
However,
if the offence falls under Schedule 6, then the provisions
of
section 60(11)(a)
place a heavier onus on the accused. He or she
is required to demonstrate that there are exceptional circumstances
which, in
the interests of justice, permit his or her release.
[2]
This
is apparent from the J15 included in the record at (i). The form
referred to an Annexure A, purportedly containing details
of the
offences with which the appellant had been charged, but no such
document was attached.
[3]
The
charge sheet is an official form, described as a J15. Also see n 2,
supra.
[4]
This
does not prevent the state, of course, from amending or
supplementing the charges, on application where necessary, provided
that this is done in advance of the bail application or trial and in
such a way as not to infringe the accused’s right
to a fair
trial.
[5]
See
n 1, supra.
[6]
See,
too, the discussion in Du Toit, at ch9-p30A-32A.
[7]
The
appellant indicated that he was earning a monthly income of
approximately R115,000. It is not known whether this represented
his
gross income; nevertheless, it is a substantial amount.