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[2021] ZAGPPHC 243
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Pillay v S (A74/2021) [2021] ZAGPPHC 243 (22 April 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A74/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
DATE:22/4/2021
In the matter between:
JAYANDRAN
PILLAY
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOKOSE
J
[1]
This is an appeal against the judgment of Ms Pretorius of the
Magistrates’
Court sitting at Tsakane, handed down on 15
October 2020, refusing to admit the appellant to bail pending the
finalisation of criminal
proceedings against him. The notice of
appeal was filed out of time on 25 March 2021. However, it was
accompanied by a condonation
application which was unopposed by the
respondent and granted.
[2]
The appellant, who was duly represented when he applied for bail, has
been charged with one count of rape in terms of the provisions of
Section 3 of the Sexual Offences and Related Matters Amendment
Act 32
of 2007 read with the provisions of Sections 51 and 5 and Schedule 2
of the
Criminal Law Amendment Act 105 of 1997
as amended as well as
Sections 92(2) and 94 of the Criminal Procedure Act Procedure Act 105
of 1977 (“the CPA”).
[3]
It is alleged in the charge sheet that the appellant unlawfully and
intentionally
committed an act of sexual penetration with D R[…],
a mentally disabled person of 51 years, on 24 September 2020 at or
near
Geluksdal in Ekhurhuleni South East by inserting his penis into
her vagina and anus without her consent. Based on this averment,
the
bail application was dealt with in the ambit of Schedule 6 of the
Criminal Procedure Act.
[4]
Appeals from the lower court are dealt with in terms of Section
65(1)(a)
of the CPA. The section provides:
"S65
APPEAL TO
SUPERIOR COURT WITH REGARD TO
BAIL
(1)(a) An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to boil 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.
………
(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.”
[5]
The appeal on hand turns on the question of whether or not the bail
application should have been determined
in terms of Schedule 5 or
Schedule 6. The appellant is of the view that the State did not act
in terms of Section 60(11A) of the
CPA as it did not prove that the
offence with which the appellant was charged is a Schedule 6 offence
and that Section 60(11)(a)
is applicable. In particular, the
allegation that the victim, who is not the complainant, is mentally
disabled, is placed in dispute.
The appellant was of the view that
for the Magistrate to appreciate whether the bail application is one
that resorts under Schedule
5 or 6 in the absence of a Section
60(11A) certificate, he must be satisfied whether the alleged victim
falls within any one of
the categories of a person who is mentally
disabled as described in the Sexual Offences Act hereinafter. In the
absence of any
proof of the victim’s mental disability and in
the absence of a certificate in terms of Section 60(11A) the
appellant is
of the view that there has been a misdirection of the
law and accordingly, this court must interfere. He would be entitled
to have
the matter adjudicated
in favorem libertatis.
[6]
Firstly, the court needs to determine whether the court
a quo
was
wrong in holding that the charges that the appellant faced fell
within the ambit of Schedule 6 without the State having presented
written confirmation to that effect. The charge sheet states that the
accused is charged with contravening the provisions of Section
3 of
Sexual Offences Act on a ‘mentally disabled person’. The
provisions of Schedule 6 of the CPA define rape as follows:
“
Rape or
compelled rape as contemplated in
Section 3
or
4
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively
-
(a)
..............
(b)
Where the victim-
……
..
(iii) is a person who
is mentally disabled as contemplated in
Section 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
; or
(c)……….
[7]
A mentally disabled person is described in the definitions clause of
the Sexual Offences
Act as follows:
"'Person who
is mentally disabled'
means a person affected by any
mental disability, including any disorder
or disability of the
mind, to the extent that he or she, at the time of the alleged
commission of the offence in question, was-
(a)
unable to appreciate the nature and reasonable foreseeable
consequences of a
sexual act;
(b)
able
to
appreciate
the
nature
and
reasonably
foreseeable
consequences
of
such an act,
but unable to act in accordance with that appreciation;
(c)
unable to resist the
commission of any such act;
or
(d)
unable to communicate his or her willingness to
participate in any such act.”
[8]
Section 60(11A) of the CPA provides,
inter alia,
that at any
time before an accused plead s to the charge, the attorney-general
may issue a written confirmation that he or she intends
to charge the
accused with an offence referred to in Schedule 5 or 6.
[9]
I note that after it had been decided that the charge fell within the
ambit of Schedule 6, no issue was raised by the appellant with the
State to present the written confirmation in terms of Section
60(11A)
as it was obliged to prove that the victim was mentally disabled.
This was only brought up in the hearing in respect of
the bail appeal
for the first time. Had the appellant brought up this issue, the
provisions of Section 60(11A)(c) would have come
into operation and
the State would have been obliged to furnish such confirmation or at
least an indication when it would be furnished.
[10]
Accordingly, I come to the conclusion that the Magistrate was not at
fault in proceeding
with the bail application on the basis that it
fell under the ambit of Schedule 6. Furthermore, I am of the view
that the State
was well within its right to send the victim for an
assessment with the Teddy Bear Clinic as it had done. Accordingly,
Section
60(11) became applicable .
[11]
Section 60(11) provides that :
“
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 release”.
[12]
In
terms of Section 60(11) the onus falls upon an applicant to adduce
evidence which would satisfy the court that exceptional
circumstances
exist in the interests of justice which would permit his or
her release
on
bail.
The Constitutional Court in
S
v
Dlamini;
S v
Dladla
and Others; S
v
Joubert; S
v
Schietekat
[1]
stated
the
following
pertaining to
exceptional
circumstances:
“
[75]
An applicant is given broad scope to establish the requisite
circumstances,
whether they relate to the nature of the crime, the
personal circumstances of the applicant or anything else that is
particularly
cogent ....
[76]
...
In requiring that the circumstances proved be exceptional,
the subsection does not say they must be circumstances above and
beyond
and generically different from those enumerated. Under the
subsection, for instance , an accused charged with a Schedule
6
offence could establish the requirement by proving that there are
exceptional circumstances relating to his or her emotional condition
that render it in the interest of justice that release on bail be
ordered notwithstanding the gravity of the case …”.
[13]
In discharging this onus, the appellant submitted an affidavit in
which he confirmed his place
of residence, that he is employed and
confirmation of his earnings. Furthermore, he confirmed that he has
no previous convictions
and outstanding cases. He undertook that
should he be released on bail, he would not endanger the safety of
the public or a particular
person or commit any offence; he would not
evade his trial; he would not attempt to influence or intimidate any
witnesses nor conceal
or destroy any evidence; and would not
undermine or jeopardise the objectives of the proper functioning of
the criminal justice
system.
[14]
However,
during argument, Mr
Pooe, for
the appellant, argued that the State’s case is weak and based
this argument on the fact that there was no certainty
of the
victim’s
mental capability at the time of the bail
application
and
that
it was
a
mere
averment
that
the
victim was
mentally
disabled. This, he argued, should be regarded as an exceptional
circumstance which should have enabled the court to find
that the
appellant had discharged the onus that rested on him. Accordingly,
bail should have been granted. The appellant had given
evidence in
the form of the affidavit he submitted in support of his bail
application . Such evidence was not open to being tested
by
cross-examination and
was as
such, less persuasive.
[2]
[15]
Mr Pooe further contended that the intercourse between the victim and
the appellant was consensual. Furthermore,
the victim and the
appellant are lovers. I note from the affidavit that there was no
mention that the appellant disputes sexual
intercourse. It is silent
on this point. The affidavit read as follows:
“
12.
Submissions regarding the offence:
I have been advised by
my legal representative that I have the right to remain silent and
that should I decide to made a statement
or disclose my defence that
the statement I make may be used against me in the forthcoming trial
should the matter proceed to same.
I know that in terms of a [sic]
South African constitution I am envisaged to be innocent until proven
guilty. I deny any involvement
by myself during the commission of
this offence as alleged by the state against
me, however would
like to state that I intent [sic] pleading not guilty to the charges
against me
and elect my right to remain silent in
respect of the merits of this matt
er.”
[16]
It is evident that Mr Pooe’s submissions were made from the bar
and not by
the appellant. This evidence could also not be tested in
cross-examination and was also not under oath.
[17]
In S v Botha en ‘n ander
[3]
the court held that in the context of s 60 (11) (a) of the CPA, the
strength of the State’s case has been held to be
relevant to
the existence of ‘exceptional circumstances’. A weak
state case will not necessarily result in the granting
of bail. On
the other hand, a strong state case will not
necessarily
result in the refusal of bail.
[18]
In the case of
S v
Mathebula
[4]
it
was stated
that:
“
[12] But a
state case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test.
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be
acquitted
of the
charge: S v Botha en ‘n
ander 2002(1) SACR 222 (SCA) at
230h, 232c; S v
Viljoen
2002 (2) SACR 550
(SCA) at
556c.
That is no mean task
the
more
especially as an innocent
person cannot be expected to
have insight into matters in which he was involved only on the
periphery or perhaps not at all.
But the state is not obliged
to show its hand in advance, at least not before the time when the
contents of the docket must be
made available to the defence; as to
which see Shabalala
&
Others v Attorney-General of
Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC). Nor is an attack on the prosecution case at all necessary to
discharge the onus; the applicant who chooses to
follow
that route must make his own was and not expect to have it
cleared before him. This it has been held that until
an
applicant has set up a prima facie case of the prosecution
failing there is no call on the
state to rebut
his evidence to that effect: S v Viljoen at 561
f-g”.
[19]
It is
trite
law that the court can only interfere with
the
decision to
refuse bail
if it is
found
that the
decision of the court
a
quo
was
wrong.
[5]
However, the court in
the matter of S v Porthen and Others
[6]
expressed the view that interference on appeal was not confined to
misdirections in the exercise of discretion in the narrow sense.
The
court hearing the appeal should be at liberty to undertake its own
analysis of the evidence in considering whether the appellant
has
discharged the onus resting upon him in terms of Section 60(11)(a) of
the CPA.
[20]
In conclusion and as I have stated above, Section 60(11A) enables the
attorney-general at any time before the accused
pleads and
irrespective of what charge is noted on the charge sheet, to issue a
written confirmation to the effect that he is intending
to charge the
accused with an offence which falls within the purvey of Schedule 5
or 6 and that such written confirmation be handed
in to court.
Furthermore, the Magistrate was not obliged to make a determination
at the bail hearing whether the State had proof
on a balance of
probabilities that the victim was suffering from a mental disability
or not. This will be determined at the trial.
[21]
Therefore, in view of the fact that no evidence was adduced to show
that the Magistrate had misdirected herself,
I am satisfied that she
had correctly assessed the totality of the evidence on a balance of
probabilities in coming to the decision
to deny the appellant bail.
[22]
Accordingly the appeal should fail.
[23]
In the result, the order I make is that the appeal against the order
of the court
a quo
to refuse to admit the appellant to
bail is dismissed.
MOKOSE J
Judge of the High Court
of South Africa
Gauteng Division,
Pretoria
For
the Appellant:
Adv CE Thompson
instructed by
AKA Attorneys Inc
For
the Respondent:
Adv
Pruis instructed by
The
Director of Public Prosecutions
PretoriaJudge
of the High Court
Date
of Hearing:
9 April 2021
Date
of Judgement:
22 April 2021
[1]
1999 (4) SA 624
(CC) at paragraphs 75 - 76
[2]
S v Pienaar
1992 (1) SACR 178
(W) at 180H
[3]
2002 (1) SACR 222
at para 21
[4]
2010 (1) SACR 55 (SCA)
[5]
S v Barber 1979 (4) SA 218
[6]
2004 (2) SACR 242
(C)