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[2009] ZASCA 91
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Mathebula v S (431/2009) [2009] ZASCA 91; 2010 (1) SACR 55 (SCA) ; [2010] 1 All SA 121 (SCA) (11 September 2009)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
J
UDGMENT
Case No:
431/2009
A S
MATHEBULA
Appellant
and
THE
STATE
Respondent
Neutral
citation
:
Mathebula
and The State
(431/09)
[2009] ZASCA 91
(11
September 2009)
Coram: HEHER, PONNAN JJA
and BOSIELO
AJA
Heard: 2
September 2009
Delivered: 11
September 2009
Updated:
Summary: Criminal
Procedure –
Criminal Procedure Act 51 of 1977
s 60(11)(a)
–
bail - exceptional circumstances – weakness of state case –
necessary proof.
____________________________________________________________________________________
ORDER
In
an appeal from the High Court, Pretoria (Makhafola AJ sitting as
court of first instance).
The following order is
made:
The appeal is dismissed.
JUDGMENT
___________________________
__________________________________________
HEHER JA
(PONNAN JA and BOSIELO AJA concurring):
[1] This is
an appeal against a judgment of the North Gauteng High Court,
Pretoria in which the learned judge dismissed an appeal
against the
refusal by the magistrate at Bolobedu to grant bail to the appellant
pending his trial.
[2] On 17
March 2008 the appellant, a man of 45 years, and a co-accused were
arrested on charges of murder and possession of arms
and ammunition.
Apparently two other co-accused had been taken into custody days
earlier.
[3] On 7
April 2008 the appellant and accused no 3, one Maswanganye applied to
be released on bail. They employed an advocate in
common. As the main
charge against them was a offence in Schedule 6 to the
Criminal
Procedure Act 51 of 1977
they undertook the task of adducing evidence
which would satisfy the court that exceptional circumstances existed
which in the
interests of justice permitted the court to release them
(S 60(11)(a)
of the Act).
[4] They
sought to discharge the onus by producing affidavits deposed to by
each of them. (The content of the affidavit made by
Maswanyange was
exculpatory in nature and did not then or subsequently bear on the
appellant’s case.)
[5] The
appellant’s statement contained the following averments which
are contended to be of relevance in the discharge of
the onus:
1. He
resides in a house in a village in Giyani.
2. He is married with
three school-going children.
3. He is self-employed as
a taxi owner, one of three such vehicles being driven by him also.
4. He is the
breadwinner of the household and has a net income of about R15 000
per month. His estate (which includes fixed assets)
amounts to about
R500 000.
5. He does not possess a
passport and has no relatives outside South Africa.
6. He does
possess a firearm (of which the police had taken possession) but
denies its use in the commission of the crime. (At the
appeal hearing
counsel for the State informed us that ballistic tests on the firearm
had not established any such connection.)
7. He has no relevant
previous convictions.
8. He was
arrested on a Saturday, the day following the alleged crime. On the
Friday he was engaged in driving his taxi in the course
of business
on a route between Giyani and Polokwane between 14h45 and 20h40 at
which hour he arrived home and retired for the night.
He therefore
intends to plead not guilty and raise an alibi.
9. After his arrest he
was severely tortured in order to extract a confession.
10. At the
time of his arrest he had in his possession cash amounting to about
R7500 to be deposited in the bank: money due on his
kombi and a
further R2000 paid to him by a creditor.
11. He was told by his
co-accused that they too had been severely assaulted apparently with
the intention of persuading them to
say that he had hired them to
commit the murder.
12. He averred that
‘
The
state case against me is weak and . . . for the state case to stand
they will be forced to turn the co-accused into state witnesses.’
The
appellant submitted that the cumulative effective of these
circumstances rendered them ‘exceptional’ for the purpose
of justifying his release on bail. He added that he would not pose a
danger to the public, evade his trial, interfere with witnesses
or
evidence, and that his release would not jeopardise the functioning
of the criminal justice or bail system or public peace or
order.
[6] After
the applicant’s case was closed the prosecutor intimated that
he would call the investigating officer to testify
in opposition to
the application. When the trial resumed four days later, however, he
too submitted an affidavit in which that
officer, Kgabo Masoga, an
Inspector in the SAPS deposed as follows:
‘
The
offence with which the accused has been charged is a schedule 6 (six)
offence in that it was planned or premeditated and that
it was
committed by a group of persons or syndicate acting on the execution
or furtherance of a common purpose or conspiracy.
4.
The
interests of justice do not permit the release from detention of the
accused on the ground that there is the likelihood that
the accused,
if they are released on bail, will undermine or jeopardize the
objectives or the proper functioning of the criminal
justice system,
including the bail system, because of the nature and gravity of the
charge on which the accused are to be tried.
5.
The
nature and gravity of the punishment which is likely to be imposed
should the accused be convicted of the charge against them
should be
taken into account. The DPP has already decided that this is a matter
justiciable in the High Court of South Africa.
6.
The
victim was shot at, when he was about to enter into his yard, at
close range. The circumstances under which the offence was
committed
are likely to induce a sense of shock or outrage in the community
where this offence was committed should they be released
on bail. The
shock and outrage of the community might lead to public disorder if
the accused are released on bail. The safety of
the accused might
also be jeopardized by their release.
7.
The
release of the accused will undermine or jeopardize the public
confidence in the criminal justice system, in that the community
may
take the law into their own hands. The state has a strong case
against the accused and there is a likelihood of the accused
being
convicted.
8.
During
January 2008 a court order was made against accused number 4(four) by
the High Court of South Africa (Transvaal Provincial
Division) under
Civil Case No. 25270/2006.
In
the matter between Molototsi Taxi Association and Giyani Taxi
Association being 2
nd
respondent and accused being a member of 2
nd
respondent. The deceased in this matter was a member of Molototsi
Taxi Association being applicant. The order by the Honourable
Judge
of the High Court of South Africa was given in favour of applicants.
The accused has therefore a resentment which he harbours
against
members of Molototsi Taxi Association of which the deceased is also a
member.’
[7] On 15
April 2008 the magistrate dismissed the application. He found that
the appellant had failed to discharge the onus.
[8] On 23
May 2008 the defence applied to renew the application on new facts.
On behalf of the appellant his wife Victoria gave
evidence under
oath. In so as is relevant she added the following facts:
1. Since the
detention of the appellant she had struggled to maintain the taxi
business formerly run by him. Little income was being
generated and
creditors were pressing.
2. At the
date of testifying she was 4 months pregnant, unwell and under
stress. The pregnancy was under threat.
[9] The
State led no additional evidence. The magistrate again dismissed the
application.
[10] The
appellant appealed to the High Court. For reasons which are
unexplained the appeal was not heard until 7 April 2009. Judgment
was
delivered on 16 April.
[11] In
the present instance the appellant’s tilt at the state case was
blunted in several respects : first, he founded
the attempt upon
affidavit evidence not open to test by cross-examination and,
therefore, less persuasive: cf
S v Pienaar
1992 (1) SACR 178
(W) at 180h; second, both
the denial of complicity and the alibi defence rested solely on his
say-so with neither witnesses nor
objective probabilities to
strengthen them. The vulnerability of unsupported alibi defences is
notorious, depending as it does,
so much upon the court’s
assessment of the truth of the accused’s testimony. In so far
as the appellant suggested that
the police had extracted an
inadmissible confession from him (or his co-accused), he provided no
detail which might have enhanced
either his or their reliability or
credibility.
[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
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 way and not expect to have it cleared
before him. Thus 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 561f-g.
[13] As
will be apparent from the paucity of facts in support of his case,
the appellant fell substantially short of the target.
Despite the
weak riposte of the state, the magistrate was left, after hearing
both sides, no wiser as to the strength or weakness
of the state case
than he had been when the application commenced. It follows that the
case for the appellant on this aspect did
not contribute anything to
establishing the existence of exceptional circumstances.
[14] The
reliance on his wife’s physical and psychological problems was
directed mainly to her pregnancy and its effects.
Whatever its merits
at the time of the application it was in essence a temporary
consideration which has long since been overtaken
by the lapse of
time in bringing this matter to a conclusion. Accordingly it is no
longer relevant to a decision of the issue.
[15] The
remainder of the personal factors urged on us, are neither unusual or
such as singly or together warrant release of the
appellant in the
interest of justice. Parroting the terms of subsec (4) of
s 60
, as he
did, does not
establish
any
of those grounds, without the addition of facts that add weight to
his
ipse dixit
.
[16] The
appeal is dismissed.
________________________
J
A HEHER
JUDGE
OF APPEAL
A
ppearances:
F
or
appellant: R C Krause (Attorney)
I
nstructed
by: BDK Attorneys, Johannesburg
Symington
& De Kok, Bloemfontein
F
or
respondent: L A More
I
nstructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein