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[2021] ZAGPJHC 125
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C and Another v S (SS013/2021) [2021] ZAGPJHC 125 (26 July 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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: SS013/2021
REPORTABLE
OF INTEREST TO OTHER JUDGES
REVISED
DATE: 04/08/2021
In the matter between:
W[....]
C[....]
First Applicant
N[....]
S[....]
Second Applicant
and
THE
STATE
Respondent
JUDGMENT
MABESELE,
J
:
[1]
This is an opposed application for bail on the new facts. The first
applicant is W[....]
C[....]. The second applicant is N[....]
S[....]. Both the applicants are in the employ of the South African
Police Service. Amongst
the charges the applicants are facing a
charge of murder. This charge falls within the ambit of schedule 6 of
the
Criminal Procedure Act, 51 of 1977
in terms of which the
applicants must show that the exceptional circumstances exist that
justify their release on bail.
[2]
The applicants were denied bail in the magistrate court on 22
nd
September 2020. Thereafter the matter was transferred to this court
for trial. It is for this reason that this application is entertained
in this court.
[3]
This application is opposed on the two main grounds. The first ground
is that the
facts placed by each applicant before this court are not
new. Secondly, the respondent argues that in the event the court is
of
the view that the facts are new, they do not constitute
exceptional circumstances that justify their release on bail.
[4]
It is trite law that if the application on the new facts do not
constitute “new
facts”, the application should fail
without considering the old evidence presented in the earlier bail
application. This
is emphasised in S V Vermaas
[1]
as follows:
‘
Obviously
an accused cannot be allowed to repeat the same application for bail
based on the same facts week after week. It should
be an abuse of the
proceedings. Should there be nothing to be said the application
should not be repeated and the court will not
entertain it. But it is
a non sequitur to argue on the bases that where there is some new
matter the whole application is not open
for reconsideration but only
the new facts. I frankly cannot see how this can be done. Once
the application is entertained
the court should consider all the
facts before it, new and old and on the totality come to a
conclusion’.
[5]
The initial application was dismissed for the following reasons: (i)
the likelihood
that the applicant will interfere with the
investigations and intimidate the witnesses (ii) the strength of the
state case against
the applicants (iii) the threats allegedly made by
the second applicant
against the first applicant. (iv) anger by the community of E[....]
Park and the likelihood of disturbance of public peace (v)
failure by
the applicants to prove the existence of exceptional circumstances
that justify their release on bail
[2]
.
[6]
The first applicant argues that the police investigations have been
finalised and
the trial is set down for hearing on the 4
th
to 29
th
October 2021. She argues that since the dismissal
of her initial application the mental health condition of her child
has deteriorated.
She explains the condition of her child as follows:
‘
Since I was arrested, my
child, K[....] W[....] had been struggling with extreme nightmares.
Although she suffered from these before
my main bail application,
these attacks had now become debilitating. She is also being severely
prejudiced by her peers for being
my child as my case is receiving
significant media attention. She is suffering from anxiety and
because my income and medical aid
is suspended, I cannot afford the
necessary medical care for her. As a mother, I need to be there for
my child and assist her to
come to terms with what transpired an the
events that occurred in our lives.
The child is struggling emotionally
and it has now affected her school progress. If I were to be released
on bail, I will be in
a position to care for her and to assist her
with her anxiety attacks. The reason for her anxiety is my absence
and her fear and
uncertainty regarding the future. I will approach
FAMSA to assist my child and I in group therapy to deal with her
emotions. My
mother is too elderly and cannot take care of my
child……..’
[7]
The first applicant says that she was placed on suspension without
pay after the initial
application failed and her suspension without
pay affected her medical aid funds adversely.
[8]
To sum up. The first applicant successfully raised the three issues
which constitute
the new facts. These are: (i) the police
investigations which have been finalised (ii) deterioration of the
mental health condition
of her child which requires her urgent
attention (iii) suspension from work without pay and its impact on
her medical aid which
her child would no longer have access to,
thereby necessitates her release on bail so that she is able to see
how best she can
organise funds to assist her child.
[9]
The question is whether these new facts constitute the exceptional
circumstances for
the release of the first applicant on bail.
[10]
Our courts have refrained from providing an exhaustive definition of
what constitutes exceptional
circumstances In S V Jonas
[3]
the court said the following:
‘
The
term “exceptional circums
tances”
is not defined. There
can be as many circumstances which are exceptional as the term in
essence implies. An urgent serious medical
operation necessitating
the accused’s absence is one that springs to mind. A terminal
illness may be another. It should be
futile to attempt to provide a
list of possibilities which constitute such circumstances,……….
’
[11]
Obviously, the personal circumstances which are common cannot
constitute exceptional circumstances
for purposes of
section 60(11)
(a) of the
Criminal Procedure Act
[4
]
.
Regard should be had though that the practice of culture, although
common in certain communities, may constitute exceptional
circumstances for the purposes of this section. What comes to mind is
the need for the accused to participate in a family cleansing
ceremony. However, this factor should be considered together with the
other factors.
[12] The
new facts raised by the first applicant in paragraph 8 above, without
doubt, constitute exceptional
circumstances. The first applicant
intends pleading not guilty.
[13] It
is beyond dispute that the state has a strong case against the first
applicant in that she
fired a shot at the deceased and killed him.
However, this factor, weight against the new facts raised by the
applicant is not
sufficient to prevent her release on bail.
[14] The
magistrate, in his judgement, was of the view that the detention of
the first applicant protects
her against the threats directed at her
by the second applicant and the drug lords and community of E[....]
Park. The magistrate
said the following:
‘
The
community in E[....] Park is up in arms and angry about the conduct
of the three
[5]
applicants. The community demands answers as to why this young boy,
innocent as he was, unarmed, was shot and killed. If released
on bail
I have no doubt in my mind that there is a likelihood that this will
disturb public order and security. This is demonstrated
by the level
of anger in the community at E[....] Park. At some point members of
the community went and marched to the police station
threatening to
set the police station alight…….’
[15] The
court should not succumb to the pressure of the community at the
expense of the right of
the accused to freedom. The duty of the court
is to establish whether the interest of justice permits the release
of the accused
on bail based on the facts before it.
[16]
In the present case the deterioration of the mental health condition
of the child of the first
applicant which requires urgent attention
of the applicant constitutes exceptional circumstance which justify
the release of the
first applicant on bail. Anger and public outcry
cannot outweigh the right of a child to parental care.
[6]
[17]
Similarly, the argument raised by the second applicant that the birth
of his child whom he had
not seen constitutes the exceptional
circumstance that justify his release on bail has merit
[7]
.
[18] The
concerns raised by the magistrate with regards to the alleged threat
directed at the first
applicant by the second applicant and others
can be easily resolved by the first applicant by reporting the matter
to the police.
[19] In
the result, the following order is made:
1.
The application for bail
on the new facts is granted.
2.
The first applicant is
granted bail in an amount of R 1000.00 (One thousand rand)
3.
The second applicant is
granted bail in an amount of R1000.00(One thousand rand)
4.
Each applicant shall not
interfere with the state witnesses.
5.
The second applicant shall
report to the Lenasia South Police Station every Friday between 8:00
and 16:00 until his trial is finalised.
6.
The second applicant shall
not leave the province of Gauteng without the permission of the
investigating officer Mr Mathoko.
M. M MABESELE
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of
hearing
: 23 July 2021
Date of
judgment
: 26 July 2021
On behalf of first
applicant
: Adv. S.Tshivhase
Instructed
by
: No information in the papers.
On behalf of Second
applicant
: Adv. M. Mnyatheli
Instructed
by
: Feke-Myeko Attorneys, Johannesburg
On behalf of the
respondent
: Adv. Badenhorst
Instructed
by
: DPP, Johannesburg
[1]
1996(1)
SACR 528(T) at 531 e-f. See also, Vander Berg Bail- Practitioner’s
Guide 3
rd
(2012) at 73
[2]
Judgement
of the
court
a quo
(Case no: 43/795/2020)
[3]
1998(2)
SACR 677(SEC) at 678 e-g
[4]
51
of 1977, as amended
[5]
The
third accused was released on bail before this application was
launched.
[6]
Section
28(1) (b) of the Constitution provides that every child has a right
to family care and parental care.
[7]
See
note 6 above