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[2021] ZAGPPHC 92
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Nel v S (A12/2021) [2021] ZAGPPHC 92 (3 March 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
03/03/2021
Case number:
A12/2021
In the matter
between:
KOBUS
NEL
Appellant
v
THE
STATE
JUDGEMENT
MOSOPA,
J
1.
This is an appeal
against the decision of Magistrate Ms Setshogoe in the Pretoria
Commercial Crimes Court, refusing the appellant’s
bail
application on 10 December 2020. The appeal is brought in terms of
the provisions of section 65(1)(a) of the Criminal Procedure
Act 51
of 1977 (“the Act”).
2.
The parties agreed that
the bail proceedings fall under Schedule 5 of the Act, mainly for the
following reasons:
2.1.
The appellant committed
a Schedule 1 offence, while on bail for a pending matter;
2.2.
The monetary amount in
respect of the charges the appellant is currently arrested for,
exceeds R1 million;
2.3.
The appellant has two
previous convictions, dating back to 1992 and 2015.
Background
3.
The appellant is a
58-year-old male South African citizen, who is married and currently
resides in Stilbaai in the Western Cape.
4.
He is diabetic and has
been battling this condition for a relatively long period of time as
is evident from the letters of his physicians.
He has a family and
currently lives with his wife and one of his children.
5.
He is a businessman and
the owner of a company called Green Confidence Innovations (Pty) Ltd.
He is the holder of a passport, as
he conducts business in Namibia
too.
6.
On 9 December 2020,
after the appellant appeared in court, he was arrested on four (4)
charges of fraud, alternatively theft, in
the following amounts:
6.1.
R910 000.00;
6.2.
R305 000.00;
6.3.
R300 000.00 and;
6.4.
R140 000.00
No bail hearing was
entertained on the day and the bail hearing was postponed to the
following day, 10 December 2020. At that stage,
he was out on bail of
R5000.00 for the pending matter.
7.
The appellant was
legally represented by Ms Alberts in his bail proceedings. I must at
this stage pause to mention that no charge
sheet was formalized when
the bail application of the appellant was heard. Ms Alberts, on
behalf of the appellant, did not raised
any objection and the bail
application was heard without a charge sheet.
Legal
Principle
8.
Section 60(11)(b) of
the Act provides:
“
60(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to –
(b) in Schedule
5, but not in Schedule 6, the court shall order that the accused be
detained in custody until he 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.”
9.
The subsection places a
burden on the appellant to adduce evidence which satisfies the court
that the “interest of justice”
permits his or her release
on bail. The concept “interests of justice” is not
defined in the Act and in
S
v De Kock
1991 (1) SACR 299
(7)
,
it was said that it meant nothing more than the usual factors which
ought to be taken into account in bail proceedings. The
Constitutional
Court, in the matter of
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)
,
defined the concept as follows:
“
If
it is read first and the “interests of justice” bears the
same narrow meaning akin to “the interests of society”
(or the interests of justice minus the interests of the accused).”
10.
Section 60(4)(a)-(e) is
also of interest and deserves mention. It provides as follows:
“
60(4)
The interests of justice do not permit the release from detention of
an accused where one of 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 he or she were released on bail, will
attempt to evade his or her trial;
(c)
Where there is a
likelihood that the accused, if he or she is released on bail, will
attempt to influence or intimidate witnesses
or to conceal of destroy
evidence, or;
(d)
Where there is a
likelihood that the accused, if he or she is released on bail, will
undermine or jeopardise the objectives or the
proper functioning of
the criminal justice system, including the bail system;
(e)
Where, in
exceptional circumstances, there is a likelihood that the release of
the accused will disturb the public order or undermin
the public
peace.”
11.
In
S
v Diale
2017 (2) SACR 85
(GNP)
,
Kubushi J, at para 14, stated;
“
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
of
more of the consequences mentioned in s60(4) will result. The court
must not grope in the dark and speculate, a finding on the
possibilities 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.”
12.
Finally, section 65(4)
of the Act provides,
“
65(4)
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.”
13.
Where the lower court
misdirected itself materially on the facts or legal principles, the
above subsection enjoins the court to
either set aside such refusal,
remit the matter back to the lower court for consideration of bail
afresh or release the accused
on bail. (See
S
v Essop
2018 (1) SACR 99
(GNP), S v Mathonsi
2016 (1) SACR 417
(GP)
).
14.
The functions and
powers of the court hearing an appeal under section 65 are similar to
those of the court hearing appeal on conviction
and sentence. In
S
v Barber
1979 (4) SA 318
(D) 220E-H
,
Heher J remarked;
“
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…”
Discussion
15.
Both the State and the
appellant presented their evidence in the form of affidavits. The
investigating officer in the matter and
one complainant in the
charges against the appellant deposed to affidavits. The appellant
also deposed to an affidavit which was
used in support of his bail
application. There is an onus on the appellant to adduce evidence
which satisfies the court hearing
the bail application that the
interests of justice permit his release on bail. The onus must be
discharged on a balance of probabilities.
16.
The requirement that
the party must “adduce evidence”, must not be construed
to mean “oral evidence”. The
party who is called upon to
adduce evidence, should be permitted to adduce evidence in terms of
the normal, relaxed rules of evidence,
i.e., by way of an affidavit,
which have traditionally been applied in bail applications (
S
v Hartslief
2002 (1) SACR 7
(T)
).
The fact that the appellant carries the onus does not mean that the
state can remain passive by not adducing evidence or sufficient
rebutting evidence. (See
S
v Viljoen
2002 (2) SACR 350
(SCA)
).
17.
The court below, in my
view, correctly found that the appellant is not a flight risk. This
is based on his appearances at the pending
charge – he attended
court on the dates and times stipulated. I must also pause to mention
that this pending matter dates
back to 2015. The only instance when
the appellant could not attend at court, was during the height of the
pandemic, given his
health issues.
18.
The below court, when
refusing the appellant bail, found that, “
The
appellant has got an inclination in committing Schedule 1
offenses.”(sic)
.
This is based on the fact that the appellant, after his release on
bail on a Schedule 1 offense, committed a further Schedule
1
offenses. These offenses were committed using the same
modus
operandi
wherein
victims were lured into investing in the appellant’s company
and ended up losing their monies, as the appellant fails
to refund or
return their monies.
19.
When dealing with the
above aspect, i.e., propensity to committing Schedule 1 offenses
while out on bail, the appellant should not
be punished because of
his previous conduct. It is also of importance that the appellant
should demonstrate, on a balance of probabilities,
by adducing
acceptable evidence that the state’s case against him is
non-existent and subject to serious doubt. (See
S
v Tshabalala
1998 (2) SACR 259
(C)
).
20.
The appellant in his
affidavit, when dealing with this aspect, indicated that,
“…
he
intends pleading not guilty to the charges and further that he has
undertaken to the investigating officer to provide her with
a total
outset of the financial structures and monies flowing in and out of
the companies alleged.”(sic).
In my view, the
appellant failed to adduce evidence to show that the state’s
case is non-existent. The appellant did not only
commit one Schedule
1 offense, but four. I am alive to the fact that the offenses date
back to 2016 and 2017 and there is no explanation
as to why the
appellant was only arrested on 9 December 2020 and not immediately
after their commission.
21.
Mr von Mansberg’s
affidavit remains undisputed. He explained how he was swindled out of
money by the appellant in May 2020,
which is when the appellant was
on bail for a Schedule 1 offense, similar in nature. The appellant
has a previous conviction of
fraud which is also similar to the
current offense the appellant is charged with. When coming to the
conclusion that the appellant
has a propensity to commit further
offenses, the below court did not say it out of the nowhere, but
based on facts. It is my view
that the conduct of the appellant after
his release on bail made it impossible for him to be released on
bail, as he breached one
of the grounds set out in section
60(4)(a)-(e) of the Act.
22.
The health issues of
the appellant cannot be underestimated. It is clear that he is
suffering from a chronic illness which requires
that he be on
constant medication. What concerns this court is the fact that
despite the treating physician’s letter which
restricted the
movement of the appellant because of the pandemic, he was seen in
public not wearing a mask and driving his motorcycle.
He was able to
meet with Mr von Mansberg in a restaurant wherein the investment was
discussed which resulted in the complainant
losing a large sum of
money. The appellant could not attend his court appearances as a
result of his medical condition, but was
seen travelling between the
Western Cape Province and Gauteng Province. If the appellant was
genuine about his medical condition,
he should have found it prudent
to confine himself to Stilbaai which is a less populated area,
compared to Pretoria, which is densely
populated.
23.
The appellant failed to
place evidence before me, in respect of how the refusal of his bail
application affected his medical condition
in a form of a
supplementary affidavit. This leaves me with the only inference that
the appellant continues to receive his medical
treatment whilst in
custody.
24.
Mr Pistorius, in
response to the question of the appellant’s breach of a bail
condition, namely when he relocated from Paarl
to Stilbaai without
informing the investigating officer, contended that the court erred
in considering that, as the state failed
to invoke the provisions of
section 68 of the Act. The issue of the change in address was
apparent from the affidavit deposed to
in support of the bail
application in the current matter. There is nothing on record which
indicated that before the affidavit
was deposed to, the investigating
officer was aware of the appellant’s change in address. It must
also be noted that the
investigating officer in this matter is also
the investigating officer in the appellant’s pending matter.
The contention
of Mr Pistorius would have been relevant if the
investigating officer was aware of the change in address, but still
failed to invoke
the provisions of section 68 of the Act. The court
below did not misdirect itself by finding that the appellant breached
a bail
condition in the pending matter.
25.
Granting the appellant
bail at this stage, in my considered view, will undermine and
jeopardise the proper functioning of the criminal
justice system,
including the bail system. The appellant has a previous conviction of
fraud, from 2015. In 2015/2016, he was arrested
for fraud and
released on bail. In 2016, leading up to 2017, he commits another
fraud offense, but he is only arrested in 2020.
In May 2020, he
commits another similar offense. I see no reason to interfere with
the decision of the court below, as the court
did not misdirect
itself on the question of fact or law.
26.
In the consequences,
the following order is made:
1.
The appeal against the
decision of Magistrate Ms Setshogoe to refuse the appellant bail on
10 December 2020 is refused.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Adv. P Pistorius
Instructed
by:
De Meyer Attorneys
For
the respondent:
Adv. M Nethononda
Instructed
by:
The DPP
Date
of hearing:
24 February 2021
Date
of judgment:
Electronically delivered