Rudolph v S (484/2009) [2009] ZASCA 133; 2010 (1) SACR 262 (SCA) ; [2010] 2 All SA 178 (SCA) (30 September 2009)

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[2009] ZASCA 133
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Rudolph v S (484/2009) [2009] ZASCA 133; 2010 (1) SACR 262 (SCA) ; [2010] 2 All SA 178 (SCA) (30 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT
Case No: 484/2009
ABDUL MUTALIED RUDOLPH Appellant
and
THE STATE Respondent
Neutral citation:
Rudolph v The State (484/09)
[2009] ZASCA
133
(30 September 2009)
Coram:
STREICHER, SNYDERS and MHLANTLA JJA
Heard:
28 SEPTEMBER 2009
Delivered:
30 SEPTEMBER 2009
Summary:
Bail – onus in terms of
s 60(11)(a)
of the
Criminal
Procedure Act 51 of 1977
not satisfied.
ORDER
On appeal from: Western Cape High Court (Saldanha J sitting as a
court of appeal).
The appeal is dismissed.
JUDGMENT
SNYDERS JA (STREICHER and MHLANTLA JJA
concurring):
[1]
This is an appeal
against a judgment of the Western Cape High Court, Saldanha J
presiding, in which the judge dismissed an appeal
against the refusal
by the magistrate at Goodwood to grant bail to the appellant pending
his trial on a charge of attempted murder.
[2]
At the hearing
before the magistrate, during June 2009, the appellant chose to
present evidence in the form of his own affidavit,
the oral evidence
of Dr Ameen, a neurologist, and a report by Dr Thakersee, a
cardiologist, both of whom were treating him at the
time.
[3]
The appellant is a
30 year old South African citizen. Since the age of four he had been
living at one address in the Western Cape.
For two years prior to his
arrest on 29 April 2009 the appellant was employed by his sister in
her pawn shop, earning R2 000 per
month. The appellant’s parents
and four of his five siblings live in the Western Cape. He was
previously married and has one child,
aged four, from that marriage.
The child lives with her mother. He owns assets to the value of
approximately R50 000. He has never
been overseas, he does not have a
passport, and has no family or assets outside South Africa.
[4]
The appellant
married Ms Firdous Rudolph, the complainant, approximately two years
prior to the incident that gives rise to the current
charge against
him. They are the parents of an 18 month old girl. Two months before
the incident the complainant separated from the
appellant. After
their separation, on 24 March 2009, the complainant obtained an ex
parte interim protection order in terms of the
Domestic Violence Act
116 of 1998
against the appellant. The order was served on him on 30
March 2009 and was enrolled for confirmation on 13 July 2009. In
terms of
that interdict the appellant was ordered not to physically,
verbally or emotionally abuse the complainant; not to threaten,
harass
or intimidate her; not to enter her residence at 16 Faust
Close, Eastridge; not to enter her place of employment at Morkels N1
City;
and not to, directly or indirectly, contact her.
[5]
According to the
investigating officer, Inspector Abrahams, who testified on behalf of
the state at the hearing, the case against
the appellant has been
fully investigated and is ready for trial. Apart from the evidence of
the complainant, three more witnesses
are to testify about the
incident. The evidence is that on 29 April 2009 the appellant went to
the complainant’s place of employment,
uninvited. He persuaded her
to go into the kitchen with him. There he attacked her with a carpet
knife. He cut her throat and inflicted
various other lacerations,
then doused her with petrol from a 500ml Coca Cola bottle that he
carried with him and tried to set her
alight with his cigarette
lighter. When the kitchen door was opened by her colleagues they saw
him swinging the knife in her direction,
trying to inflict further
lacerations, and then trying to set her alight. Once his attack on
her was interrupted the appellant proceeded
to cut his own throat
with the same knife and then left the premises. The bloodied knife
and the almost empty Coca Cola bottle were
taken from the scene as
exhibits. The content of the Coca Cola bottle forensically tested for
petrol.
[6]
The appellant and
the complainant were admitted to hospital after the incident. Flowing
from this incident the appellant was arrested
in hospital on 29 April
2009 and charged with attempted murder. The very next day the charge
against him was withdrawn, as he was
in the intensive care unit of a
hospital. On 2 May 2009 the appellant was discharged from hospital
and on 7 May 2009 re-arrested.
The appellant had, in the interim,
also laid a charge of attempted murder against the complainant,
alleging that the injuries he
suffered during the incident were
inflicted by her. At no stage did he tender any explanation for the
injuries that were inflicted
on her. According to Abrahams a decision
was made not to prosecute the charge by the appellant.
[7]
On 11 May 2009 the
appellant suffered a massive heart attack and a second one later in
the same month with the result that he was
left with 70 per cent loss
of function in the left ventricle of his heart together with
coagulated blood in an artery that supplies
the wall of his heart
with blood. A piece of the coagulated blood dislodged and caused a
stroke. Since his first heart attack the
appellant has been treated
at the Gatesville Medical Centre by Dr O S Ameen, a neurologist, Dr S
N Thakersee, a cardiologist, and
a psychiatrist. The gist of the
evidence of both doctors was that prison is not the ideal environment
for the appellant’s recovery.
Although, according to Dr Ameen the
appellant’s condition has stabilised and would improve,
imprisonment would delay his healing
and presents some risks. Any
form of anxiety, which implies an increased heart rate, could result
in further damage to his heart
and another stroke. As the appellant
is receiving blood-thinning medication, any form of trauma could
cause excessive bleeding and,
in fact, even spontaneous bleeding is
possible. Swift access to the appellant in the event of any of these
occurrences is essential
to help him and in prison such access is
unlikely. According to Dr Ameen’s experience of working at Groote
Schuur Hospital, where
prisoners are treated, instructions by doctors
are not efficiently implemented.
[8]
Although the
appellant has no previous convictions, he was on bail of R2 000
pending his trial on charges of rape and attempted murder
allegedly
perpetrated on his former wife at the time of the incident on 29
April 2009. The incident has given rise to a second charge
of
attempted murder. Attempted murder is an offence referred to in
Schedule 5 to the Criminal Procedure Act 51 of 1977 (the Act).
Schedule 5 includes ‘[a]ttempted murder involving the infliction of
grievous bodily harm’ and ‘rape’. A Schedule 5 offence
committed whilst ‘released on bail in respect of an offence
referred to in Schedule 5’ constitutes an offence under Schedule
6.
Section 60(11)(a)
of the
Criminal Procedure Act 51 of 1977
prescribes
that in the case of offences falling within the ambit of Schedule 6
that ‘. . . 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’.
[9]
The section places
an onus on the appellant to produce proof, on a balance of
probability, that ‘exceptional circumstances exist
which in the
interests of justice permit his’ release.
1
It ‘contemplates an exercise in which the balance between the
liberty interests of the accused and the interests of society in
denying the accused bail, will be resolved in favour of the denial of
bail, unless “exceptional circumstances” are shown by the
accused
to exist’.
2
Exceptional circumstances do not mean that ‘they must be
circumstances above and beyond, and generally different from those
enumerated’
in
ss 60(4)
to (9). In fact, ordinary circumstances
present to an exceptional degree, may lead to a finding that release
on bail is justified.
3
[10]
The case presented
on behalf of the appellant is that his attachment to his community
and environment and poor health constitute exceptional
circumstances
that ‘in the interests of justice permit his release’.
4
[11]
The appellant is
rooted in his community and he is physically frail. Dr Ameen conceded
during evidence that the appellant’s condition
would, however,
improve. Despite being in custody he is receiving adequate medical
attention as is reflected by the evidence of Dr
Ameen. As an arrested
person he is entitled ‘to conditions of detention that are
consistent with human dignity, including at least
exercise and the
provision, at state expense, of adequate accommodation, nutrition,
reading material and medical treatment;’.
5
[12]
The appellant’s
case is characterised rather by what he does not address than by what
he does. The state’s case against him is
that he attempted to
murder his wife by the use of barbarous violence. He has made no
attempt to meet that case. The complainant
obtained the interim
interdict against him on allegations of violence and threats of
violence by the appellant against her and their
child. None of these
allegations are addressed by him. He has also not tendered any
explanation for the charges of attempted murder
and rape by his
former wife. Those charges also involve acts of violence. Thus the
unchallenged allegations against him show that
he has a propensity to
violence.
6
In those circumstances subsecs 60(4)(a) and (d) of the Act prohibits
his release from detention. It is apposite to quote all of s
60(4):
‘
The interests of justice do
not permit the release from detention of an accused where one or more
of the following grounds are established:
(a)
Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public or
any
particular person or will commit a Schedule 1 offence; or
(b)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial; or
(c)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt to influence or intimidate witnesses
or to conceal or destroy evidence; or
(d)
where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardise the objectives
or the
proper functioning of the criminal justice system, including the bail
system;
(e)
where in exceptional circumstances there is the likelihood that the
release of the accused will disturb the public order or undermine
the
public peace or security; or [sic]’.
Offences listed in Schedule 1 to the Act include murder, culpable
homicide, rape, sexual assault, assault when a dangerous wound
is
inflicted and arson.
[13]
The appellant,
despite the onus on him, did not introduce any evidence to show that
he is not likely to act in terms of the propensity
to violence that
his past undisputed behaviour illustrates. His physical condition, as
evident at the time of the hearing, even in
the unlikely event of no
improvement, may prohibit him from physically employing some forms of
violence, but is not evidence that
the propensity no longer exists
nor that he would be unable to commit any violence.
[14]
It was argued on
behalf of the appellant that appropriate bail conditions, like house
arrest, could adequately safeguard all interests.
7
The impracticality of house arrest was conceded during argument.
Apart from that the appellant was in breach of an interdict and
bail
conditions when he committed the offence currently charged with. He
did not adduce any evidence to explain the commission of
an offence
whilst on bail pending charges of attempted murder and rape. He only
tendered an explanation for ignoring the interdict
against him. He
alleged in this affidavit that the complainant invited him to meet
with her and that they were likely to reconcile.
This explanation
misses the point. The interdict was served on him on 30 March 2009,
less than a month before the incident. The date
for confirmation was
set for 13 July 2009. Neither the appellant nor the complainant had
taken any steps to change the set course
or effect of the interdict.
One of the express terms of the interdict aims at keeping the
appellant away from the complainant’s
place of employment. The
unanswered allegations by the state are of violence against the
complainant at her place of employment,
the very thing she wanted to
prevent by obtaining an interdict in the terms that she did.
[15] The appellant has not addressed his
propensity to ignore court orders illustrated by his past behaviour.
He has also not furnished
any evidence, despite the onus being on
him, that he is unlikely to behave with the same disregard in the
future.
8
He has, therefore, not addressed the evidence that his release will
‘undermine or jeopardise the objectives or the proper functioning
of the criminal justice system, including the bail system’.
[16
] When all the
allegations are weighed up at least two of the grounds listed in s
60(4) have been established. In those circumstances
the release on
bail of the appellant is not permitted. The court a quo was therefore
correct in upholding the refusal of bail by
the magistrate.
[17
] The appeal is
dismissed.
_________________________
S SNYDERS
Judge of
Appeal
Appearances:
For the
appellant: F Roets
Instructed
by:
F
Rudolph Attorneys, Cape Town
Symington & De Kok Attorneys, Bloemfontein
For the
Respondent: C De Jongh
Instructed
by:
Director
of Public Prosecutions, Cape Town
Director
of Public Prosecutions, Bloemfontein
1
S v Dlamini
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) para 78.
2
Dlamini
para 64.
3
Dlamini
para 76;
S v Botha
2002 (1) SACR 222
(SCA) para 19.
4
These are factors listed in s 60(6) of the CPA as
relevant considerations in an enquiry whether the ground in s
60(4)(b) has been
established.
5
The Constitution of the Republic of South Africa
108 of 1996, s 35(2)(e).
6
All of these factors are listed in s 60(5) of the
CPA as relevant to the consideration whether the ground in s
60(4)(a) has been
established.
7
S v Branco
2002
(1) SACR 531
(W) at 537a-b.
8
These factors are relevant to consider whether
the ground in s 60(4)(d) has been established.