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[2021] ZAGPPHC 182
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Ramaroka v S (A68/2021) [2021] ZAGPPHC 182 (24 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(VEREENIGING CIRCUIT
COURT HELD IN PALM RIDGE)
CASE NO:
A68/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED
DATE:
24 March 2021
In
the matter between
NICHOLUS
MANKALE RAMAROKA
APPELLANT
v
THE
STATE
RESPONDENT
JUDGMENT
ON BAIL APPEAL
THOBANE
AJ
[1]
The appellant, appeals against the refusal of his formal bail
application by the magistrate Ms Rapulana at Ekangala Magistrate
Court on 29 December 2020.
[2]
He is standing trial on a charge of rape. The allegation against him
is that during the year 2020 the appellant intentionally
and
unlawfully committed an act of sexual penetration against the
complainant a […]years old girl by penetrating her vagina
with
his penis. As I understand things investigations were pending when
the application was launched and still are.
[3]
Absent from the transcript of the bail proceedings is the testimony
of the first witness called by the respondent Sergeant Mabusha.
His
testimony however is comprehensively dealt with in the judgment by
the magistrate. For purposes of this appeal, both counsel
agree, the
transcript as it currently stands is sufficient.
[4]
The appellant did not give oral evidence but placed his circumstances
before court by way of an affidavit. He is a South African
citizen
aged [..]. He is married and has three minor children who reside with
him at […] Section […], his parental
home. He has been
residing at that address for eight years. He has no passport or any
other travel document. He has never been
outside the boarders of
South Africa and has no relatives outside RSA. He is employed at […],
a company based in […].
He earns the sum of R5 000-00 per
month and is the sole bread winner. His employment was confirmed by
his employer J M[…]
whose affidavit was handed up.
[5]
He indicated that he was a not a flight risk and undertook to attend
court and stand trial. He stated that;
5.1.
He has made no threats against anyone involved in the case;
5.2.
He has received no threats;
5.3.
His safety will not be compromised should he be released on bail;
5.4.
The community will not be angered or disgruntled should he be
released on bail;
5.5.
He can not think of any reason why his release on bail will affect
public safety, peace and order;
5.6.
His release will not negatively influence criminal procedure,
specifically bail legislation.
[6]
He stated further that he cooperated with the police in that he
handed himself over to the police. After his arrest he continued
to
give his cooperation to the police.
[7]
He has no previous convictions and has no pending cases. His
continued incarceration will cause him prejudice in that;
7.1.
He will not be able to fully prepare for trial;
7.2.
He will lose his employment which will have far reaching
ramifications because he is the sole bread winner.
[8]
Should the Court deem it appropriate to impose conditions, he is
prepared to abide thereby. He is prepared to, should the Court
so
direct, report at his nearest police station. He offered an address
of […] as a place to where he can relocate so as
to avoid
contact with state witnesses, particularly the complainant, should
the court determine that such a condition is warranted.
[9]
The respondent called two witnesses who gave
viva
voce
evidence. Sergeant Mabusha
testified that he was 13 years in the SAPS. He was not the
investigating officer but assisted Constable
Malepe, the
investigating officer, in the matter. He confirmed that the appellant
did not have previous convictions. He confirmed
his work address and
his residential address. He testified that the accused’s
residence is less than two kilometers from
the complainant’s
residence. In addition, that the complainant’s grandmother is
the next door neighbour of the appellant.
[10]
In connection with the case he testified that the appellant was
pointed out by the complainant as the one that raped her. Further
that there were no DNA results. This is understandable because the
dates on which the rapes are alleged to have been committed
are
unknown.
[11]
He did not oppose the appellant’s release on bail and indicated
that the complainant’s mother was also of the view,
according
to a statement she made, that the appellant “might be released
from custody”. It later turned out that the
statement was
neither signed nor dated.
[12]
The investigating officer Detective Constable Thabo Malepe was called
as the second witness. He confirmed in the main all the
personal
circumstances of the appellant. He testified that he differed with
the posture adopted by Sergeant Mabusha, that of not
opposing bail.
He proceeded to advance the following reasons;
12.1.
There is an outcry by the community, especially in GBV cases, who
accuse the police of not doing their work. He is opposing
bail so
that the community can see that police are working;
12.2.
Because the victim is [..] years old and can not protect herself and
because he is not sure if her parents can defend her,
he is stepping
up. In addition he is moved by media reports on GBV and decided that
the police should do something;
12.3.
The child alleges that she was raped six times over a period of time
starting in 2019, although she does not disclose any
dates;
12.4.
The accused is the neighbour to the victim’s grandmother, whom
she frequently visits;
12.5.
That there is a possibility that the accused can threaten the victim.
[13]
The offence of which the appellant is charged is an offence listed in
Schedule 6 to the
Criminal Procedure Act, 51 of 1977
. The appellant
therefore had to persuade the
Court
a
quo
on a balance of probabilities that exceptional circumstances exist
which are permissive of his release on bail. Among other tools
at the
court’s disposal is an assessment of the strength of the
State’s case, which I believe is germane to an enquiry
as to
the existence of exceptional circumstances. (See
S
v Kock
[1]
).
[14]
In her Judgment the magistrate does not make any assessment of the
strength or otherwise of the State case. Had she done so,
she would
have become aware that;
14.1.
The evidence against the appellant is that of a single witness,
therefore the evidence is to be approached with caution;
14.2.
The single witness is a minor, therefore further caution is called
for;
14.3.
The rape incidents are said to have taken place over a period of time
with no specific dates, thus making them difficult to
prove;
14.4.
There is no DNA evidence linking the appellant to the commission of
the crimes;
14.5.
That outstanding or pending investigations only pertain to an
interview of the victim by a Social Worker and that there his
no
evidence that such a report will significantly advance investigations
or result in the obtainment of further and better evidence,
it being
ex post facto
.
[15]
In my view, had the magistrate assessed the strength or weakness of
the State case, she then would have concluded that the
State case
against the appellant was weak. In the context of
s 60(11)(a)
of the
Act, the strength of the State case has been held to be relevant to
the existence of ‘
exceptional
circumstances’
[2]
.
In
S
v Kock
(
supra
)
the following is said at paragraph 15;
“
When
the State has either failed to make a case or has relied on one which
is so lacking in detail or persuasion that a court hearing
a bail
application cannot express even a prima facie view as to its strength
or weakness the accused must receive the benefit of
the doubt. The
case presented to the court of first instance fell into the second
category. That should have been an important
factor in the
magistrate's evaluation of the application. Because of her
misdirection no proper attention was paid to it.”
[16]
In the course of a bail application the magistrate need not make a
finding, even on a provisional basis, as to the guilt or
innocence of
an applicant for bail. All the Court has to do is to weigh the
prima
facie
strength or weakness of the State’s case and such a decision
ought not to be made with regard to credibility findings in
order
that bail proceedings do not become a dress rehearsal for the trial
itself
[3]
.
I conclude that the Court
a
quo
misdirected
itself in that it failed to weigh, on a
prima
facie
basis, the strength and weakness of the State case.
[17]
Constable Malepe testified and opined as follows about the threat
posed by the appellant
[4]
;
“
Due
to the fact that the child and the accused person see each other
frequently, so it might happen that the accused person might
threaten
the child or looking at the fact that there are men who rape and kill
children, so I am not satisfied that the accused
person should be
released on bail.’
[18]
In her judgment, the magistrate summarises the testimony of Constable
Malepe and says
inter
alia
the
following
[5]
;
“
He
further said that the victim frequently visits her grandmother, which
(sic) is your next door neighbour, and also that you may
intimidate
the victim, the reason being that the social worker’s report is
still outstanding.”
[19]
It is self evident that the summary by the magistrate is not
accurate. The investigating officer was simply speculating and
stated
that “
it might happen
”
that the accused “
might
”
threaten the child. He offered no evidence on which the basis for his
speculation is founded. I have great difficulty accepting
an
expressed possibility without any foundational basis or what informs
it.
[20]
The testimony of Constable Malepe intimated that a Social Worker’s
report was outstanding and that the victim needed
to be interviewed
by the Social Worker. This is the only investigation which was said
to be outstanding. In her judgment, the magistrate
seems to have
linked the alleged apprehension by the investigating officer with the
outstanding Social Worker’s report, as
well the fact that the
victim might be relaxed in the presence of Social Workers, were the
accused to be in custody when the interview
is conducted. The Court
concludes, without evidence, that the child would not be free when a
Social Worker interviews her, if the
accused is out on bail
[6]
.
This Court as the upper most guardian and keeping in mind the
interest of the child directed questions to the parties to establish
if the interview has taken place. I have been informed that it has.
To the extent that the appellant’s release would have
impacted
the procurement of the report, that is no longer a concern.
[21]
It seems the Court
a quo
was concerned, correctly in my view, that the victim may come into
contact with the appellant. The appellant in his application
had
tendered an alternative address to which he was prepared to relocate.
He also gave an indication of his preparedness to abide
by bail
conditions were they to be imposed. The magistrate did not evaluate
the viability or otherwise of imposing any conditions.
This was a
misdirection.
[22]
The magistrate was at pains to observe that the affidavit tendered by
the accused did not mention exceptional circumstances.
She further
observed that it appeared the affidavit was prepared with a Schedule
5 mindset, among others because where the affidavit
mentioned
Schedule 6, it seemed to her the 5 was written over to make it appear
as a 6, with a pen. I am of the view that it matters
little how the
affidavit is couched and whether there were corrections thereon. What
is of critical importance is that at the commencement
of the bail
application, appellant’s legal representative confirmed that
the bail application was on the basis that the appellant
is facing a
Schedule 6 charge. In addition, when the appellant’s legal
representative addressed Court at the close of the
State case, he
submitted that the appellant bore the onus to show that exceptional
circumstances were present. What matters the
most is whether the
appellant advanced factors which meet the yardstick set by
legislation and case law.
[23]
This Court must determine whether the appellant was able to prove the
existence of exceptional circumstances within the meaning
of
Section
60(11)(a)
of the
Criminal Procedure Act, 51 of 1977
, before the Court
a
quo
.
In order to establish whether the appellant did discharge this onus,
the magistrate was constrained to determine whether on the
facts of
the case, the circumstances placed before her can be said to be
“exceptional”. This entailed the making
of a value
judgment on the part of the magistrate
[7]
.
[24]
The appellant placed certain facts which were not challenged by the
respondent and which the magistrate did not take into account
or if
taken into account are not referred to in her judgment;
24.1.
That he is not a flight risk and intends standing trial;
24.2.
That he co-operated with the police and that he in fact handed
himself to the police;
24.3.
That he will not interfere with witnesses, save for the part relating
to the Social Worker and the fact that the victim needed
to be
“relaxed” which is not derived from facts nor is it
rationalised;
24.4.
That his release may cause public disorder, endanger the public or
even the accused and will undermine public peace;
24.5.
That any concerns the State has can be addressed by the imposition of
appropriate bail conditions;
24.6.
That evidence suggests that the rape incidents took place over a
period of time and that there is paucity of detail;
24.7.
The strength or otherwise of the state case.
[25]
In summary, before the Court
a quo
was the appellant against whom there was no assessment of the
strength or weakness of the state case; there was no well-grounded
reason to believe that he will influence state witnesses particularly
the victim pending the trial or will abscond and thus remove
himself
from the oversight of the authorities; that formulation of
appropriate bail conditions would address concerns about possible
contact with the victim. I am of the view that the facts placed by
the appellant before the magistrate, when considered cumulatively
bearing in mind the state case, are exceptional. I conclude that the
magistrate wrongly refused the release of the appellant on
bail. The
appeal must therefore succeed.
[26]
I therefore make the following order;
26.1.
The appeal is upheld;
26.2.
The order of the Court
a quo
is set aside and replaced with
the following:
26.2.1.
Bail is granted to the appellant in the amount of R5000.00
(five thousand Rand) on the following conditions:
(i)
that he appears personally in the Magistrate’s Court or
Regional Magistrate’s Court in Ekangala
on such times, dates
and places to which the criminal proceedings may from time to time be
adjourned until the conclusion of the
said proceedings;
(ii)
that he relocates to […], […], and reside at that
address until conclusion of his trial and
(iii)
that he shall not directly or indirectly interfere with or contact
any of the state witnesses or any member of
their families, either
personally or via a third person.
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
ON
NEHALF OF THE APPELLANT
:
ADV.
ROETS
ON
BEHALF OF THE RESPONDENT :
ADV. MARITZ
DATE
OF JUDGMENT
: 24
MARCH 2021
MANNER
OF DELIVERY:
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
is
deemed to be 09h34 on 24 March 2021.
[1]
See
in this regard:
S
v Kock
[2003]
1 ALL SA 551
(SCA)
at par 15 (11 i –
12
b) and cases cited there.
[2]
See
S
v Botha en 'n Ander
2002 (1) SACR 222
(SCA
)
at
para [21],
S
v Viljoen 2002
(2)
SACR 550 (SCA)
at
para [11])
[3]
S v
Van Wyk 2005 (1) SACR 41 (SCA)
[4]
Page
33 line 5-10 of the record.
[5]
Page
62 line 18-21 of the record.
[6]
Page
65 line 22-24, “
My
view is that this child needs to be free and not fearing that you
are out you do some harm to her. We need that the statement
be
obtained.”
[7]
S
v Porthen and others 2004
(2)
SACR
242
(C)