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[2021] ZAGPPHC 363
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J.P v S (A74/2021) [2021] ZAGPPHC 363 (22 April 2021)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETO
R
IA
CASE
NO: A74/2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter between:
J[…]
P[…]
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 appl cation 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
6S(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 r
e
fusal
by
a
lower court to
admit
him
to
bail or by the
imposition
by such
court of
a condition o
f
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
r
e
fusal
or
the
imp
o
sition of such
condition
to
the superior court havin
g
jurisdiction
or to any judge
of that court if the
court
is not then
sitting
.
(4)
The co
u
rt or judge hearing the appeal shall not
set aside the decision aga
i
nst 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, i 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. ln 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
L
aw
(Sexual Offences
and
Reiated
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
o person affected by
any
menta
l
disability,
including
any disorder
or d
i
sability
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 oct;
(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
res
i
st the
commission
of any
such
act;
or
(d)
unable t
o
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 pleads 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
disturbed. This was only brought up in the hearing in respect of the
ball 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, l 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
o
f this Act, where an accused
i
s
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
Jaw,
unless
the
accused,
having
been
given
a
reasonable
opportunity
to
do so,
adduces
evidence
which
satisfies
the
court chat exceptional circumstances exist
which
in the interests of justice permit his or her
release.
(b)
In Schedule
5,
but
nor
in
Schedule 6, t:he court shall order that the accused be
detained in
custody
until he
or
she is
dealt wit
h
in accordance
with
the law,
unless the accused, having
been given a r
e
asonable opportuni
t
y to
do so,
adduces evidence which
sati
s
fies
the court
that the interests of justice
permit
his release.
"
[12]
I
n
terms
of Section 60(11)
the
onus
falls upon an applica
n
t
to adduce evidence which would satisfy the court that exceptional
circumstances exist
i
n
the interests of justice which would permit his or her rel
e
ase
on bait.
The
Constitut
i
onal
Court
i
n
S
v Diamini;
S
v Dladla and Others; S v
Joubert;
s
v
Schietekat
[1]
stated
the
followi
n
g
pertaini
n
g
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 ....
[
7
6]
...
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, on accused
charged
with
a Schedule
6
offence
could
establish
the
requirement by
proving that
there
are
exceptional
circumstances
relat
i
ng to
his or
her
emotional condition that render
it
in the interest of justice
that release
on ball be ordered notwithstanding
the
gravity of the case.
.
.”.
[13]
I
n
dischar
g
i
ng
th
i
s
onus, the appellant submitted an
aff
i
da
v
i
t
i
n
which he confirmed his place of res
i
dence,
t
h
at
he
i
s
employed
and
confirmation of
h
is
earni
n
gs.
Furthermore, he confirmed
that
h
e
has
no
previous
convictions
and
outstanding cases. He
un
d
ertook
that
should
he
be
released
on bail,
he
would
not
endanger the
safety of
the public or
a particular person
or comm
i
t
any offence; he wou
l
d
not
evade his
trial;
he
would
not attempt to influence
or i
n
timidate
a
n
y
witnesses nor conceal or
de
s
troy
any
evi
d
ence;
and would not
undermine
or Jeopardise
the
objectives
of the proper functioni
n
g
of
the
criminal justice
system.
[14]
However, duri
n
g
argument,
Mr
P
ooe,
for the
appellant,
argued that
the State's
case
i
s
weak and
based this
arg
u
ment
on the
fact
that
there
was
no
cert
a
i
nty
of
the
victim's
me
n
tal
capability at the time
of
the
bail
application
and that it was a mere averment that the vict
i
m
was
mentally
disabled. This, he
ar
g
u
ed,
should be
regarded
as
an
exceptional
circumstance
w
h
i
ch
should
have
enabled
the court
to find
that
the
appellant had
discharged
the omc1s that
rested on
him. Accordingly, bail should have been granted. The appella
n
t
had given evidence
in the form
of the affidavit he subm
i
tted
in support of his bail application. Such evidence was not
open to
being tested by cross-exam
i
nation
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
/
decide to
made
a
statement or discl
o
se my d
e
fence
that the statement I make may be
used aga
i
nst me
in th
e
forthcoming
trial should the
matter proceed
to some.
I know that in
terms of
a [sic]
South
A
frican
constitution I am envisaged to be innocent
until proven
guilty. I
deny
any involvement by
myself during the
commission
o
f
this
o
ffence 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
o
f
the
merits
o
f
this
matter.
,
..
[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.
[
1
7]
l
n
S v Botha
en 'n
ander
[3]
the court
h
eld
that
i
n
the context
of s 60 (1
1
)
(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
s
t
ate
case
will
not
necessarily
result
in
the
refusal
of
bail.
[
1
8]
I
n
the
case of S
v
Mathebu
l
a
[4]
i
t
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 rest.
In order
successfully to challenge the merits of such a case in
boil
proceedings
on 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 Vil
j
oen
2002
(2)SACR
550
(SCA)
at 556c.
Thot
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 pe
r
iphery or
perhaps
not at
alt.
But the state
is not obliged
to show its hand
in advance,
at
least not before
the
time
when the
content of the docket must be made available to the defence;
as t
o
which see
Shabalala
&
Others v
Attorney-
General of
Transvaal
and Another
[1995]
ZACC
1
2,
1
9
96
(1)
SA 725
(
C
C
).
Nor is
an
attack on the
prosecution case at
all
necessary t
o
discharge the onus;
the
applicant who chooses to
follow that route must make
his own was and
not expect
to have
it cleared b
e
fore him.
This it has
been
held that
until an applicant has
set up
a prima
fade case
of
the
prosecution failing
there is no call
on the state
to
rebut his evidence to that
e
ffect:
S v Viljoen at 56
1
f-g".
[1
9]
I
t
is
trite raw
that
the
court
can
only
interfere
with
the
decision
to
refuse
bail
if
i
t
i
s
found that
the decision of the co
u
rt
o quo
was
wrong.
[5]
H
owever,
the court in
"the
matter of S v Porthen a
n
d
Others
[6]
expressed
the
v
i
ew
that
i
n
terference
on appeal
was
nor
confined to
m
i
sdirections
i
n
the exercise
of
discret
i
on
i
n
the narrow
sense.
The
court
hearing the
appeal shou
l
d
be at
l
i
berty
to
u
n
dertake
its
own
analysis
of
the
evidence
i
n
c
onside
r
i
n
g
whether
the
appellant
has
discharged
the
o
nus
resti
n
g
upon
him
i
n
terms of
Section 60(11)(a)
o
f
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 sheer, 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 S
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
aquo
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
Pretoria
Date
of Hearing: 9 April 2021
Date
of Judgement: 22 April 2021
J
u
dgment
transm
i
tted
e
l
ectronically
[1]
1
999
(4) SA 624
(CC)
at
paragraphs 75
- 76
[2]
S
v
P
i
enaar
1
992
(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)