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[2021] ZAGPJHC 436
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Potgieter v S (A33/2019; 10/2/5/1(2019/36)) [2021] ZAGPJHC 436 (23 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A33/2019
DPP
REF: 10/2/5/1(2019/36)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
23/8/2021
In
the matter between:
POTGIETER,
ANDREI
Applicant
And
THE
STATE
Respondent
Delivery:
This
judgment was handed down electronically by circulation to the
parties' legal representatives by email, and uploaded on caselines
electronic platform. The date for hand-down is deemed to be 23 August
2021.
Summary:
Application
for bail pending a petition to the Supreme Court of Appeal against
the dismissal of an appeal against sentence.
Principles
governing bail after conviction and sentence restated.
JUDGMENT
WINDELL
J (MOLAHLEHI J CONCURRING)
INTRODUCTION
[1]
On 12 August 2021, the full bench of this Division, per Windell J and
Mohlahehi J, dismissed the applicant’s appeal against
sentence
imposed by the district court of the Krugersdorp Magistrate’s
Court (the court
a
quo
), and
made the following order:
2.
Mr
Potgieter is ordered to submit himself to the Krugersdorp
Correctional Centre within 5 (five) days from the date that this
order
is served on him.
3.
In the
event Mr Potgieter does not submit himself to the Krugersdorp
Correctional Centre as ordered in paragraph 2 (two) above the
South
African Police Service must within 3 (three) days of the expiry of
the date in paragraph 2 (two) take all the necessary and
permissible
steps in law to ensure that Mr Potgieter is delivered to the
Correctional Centre in Krugersdorp in order for him to
commence
serving his sentence.
[2]
It is common cause that the applicant did not submit himself to the
Krugersdorp Correctional Centre as ordered and that his
bail lapsed
on 17 August 2021.
[3]
This is a renewed application for bail in terms of section 60 of the
Criminal Procedure Act 51 of 1977 (“the CPA”).
The
applicant states that he wants to lodge a petition to the Supreme
Court of Appeal (“SCA”) against the dismissal
of his
appeal against sentence, and that pending such an application, he
should be released on bail.
[4]
At the time of the hearing of this application, (20 August 2021), the
applicant has not yet filed his petition at the SCA and
although he
states that he has “
every intention to file the aforesaid as
soon as practicable”
, it is unclear from his application
and the submissions made on his behalf when he intends on doing so.
BACKGROUND
FACTS
[5]
The applicant was found guilty in the court
a quo
on two
counts of contravening the provisions of
section 31(1)
of the
Maintenance Act, 99 of 1998
. It is common cause that the appellant
failed to comply with a court order in that he failed to pay
maintenance for his erstwhile
wife and his sons in the amount of
R1 226 869.90 over a period of approximately four years.
[6]
On 30 July 2018, the applicant was sentenced as follows: count one:
three years' imprisonment; count two: three years' imprisonment.
The
court
a quo
ordered that half of the sentence in count two was
to run concurrently with the sentence in count one. The appellant was
therefore
effectively sentenced to four and half years’
imprisonment.
[7]
Aggrieved by the above outcome, the applicant applied for leave to
appeal against both the conviction and the sentence. He was
unsuccessful and accordingly petitioned the Judge President, Gauteng
Local Division in Johannesburg, for leave to appeal in respect
of
both conviction and sentence. On 20 November 2018, the applicant was
granted leave to appeal against the sentence, however,
leave to
appeal on conviction was refused.
The applicant, having previously been denied bail pending his appeal
by the court
a quo
,
was granted bail by the High Court pending the outcome of his appeal
against sentence.
[8]
The appeal against the sentence first served before this court on 27
February 2020. On the day of the hearing the applicant
was granted a
postponement to approach the SCA in terms of
section
16(1)(b)
of the
Superior
Courts Act 10 of 2013
, in respect of his conviction. The applicant
was granted the postponement of the appeal hearing
sine
die
with specific conditions as to time frames that he had to adhere
to
.
[1]
He
failed to comply with the conditions set by this court, and the
appeal in respect of the sentence was again enrolled for hearing
on
21 May 2021.
[9]
On
the date of the hearing of the appeal, the applicant applied for a
further postponement. The application was opposed.
T
he
applicant stated that he had complied with this court’s order
of 27 February 2020, but that the petition to the SCA was
returned to
him due to non-compliance with the Rules of Court. He stated that he
had subsequently complied with the Rules and the
petition against
conviction was now pending before the SCA. It was submitted that this
court should therefore first wait for the
outcome of the petition
against the conviction before proceeding with the appeal against
sentence.
[10]
It was clear from the correspondence and the documents provided that
after receipt of the returned application from the SCA,
the applicant
did nothing to prosecute his appeal against conviction for about
fifteen months.
It
was only after receipt of the notice of set down on 13 May 2021 that
the applicant took steps to progress his petition before
the SCA. The
application for further postponement was refused and this court
proceeded to hear the appeal against sentence.
[11]
The
two main grounds upon which the applicant sought leave to appeal
were: (a) the alleged failure by the court
a
quo
to convert the criminal trial into a maintenance inquiry as provided
for in section 41 of the Maintenance Act, and (b) that the
sentence
was shockingly inappropriate or was vitiated by misdirection.
[12]
In a judgment dated 12 August 2021,
[2]
this court dismissed both grounds of appeal. As far as the first
ground was concerned it was held that in light of the court a
quo’s
finding that the non-payment of maintenance was wilful, and that the
applicant had sufficient means to comply with the maintenance
order,
that there was no good cause for the court
a
qu
o
to convert the trial into a maintenance inquiry.
[13]
As far as the second ground was concerned: the maximum sentence to
impose in a case of failure to pay maintenance is governed
by the
provisions of
section 31
of the
Maintenance Act which
provides for a
fine or imprisonment for a period not exceeding three years, or to
such imprisonment without the option of a fine.
We were satisfied
that the court
a
quo
exercised
its discretion properly and did not misdirect itself when it
sentenced
the applicant to the maximum period of imprisonment. The view that
the sentence was fair was further reinforced by the
order that one of
the counts for which the applicant had been found guilty should run
concurrently with the other.
We
were further alive to the fact that
an
appeal court may interfere with the sentence of the trial court when
there is a disparity between the sentence the appeal court
would have
imposed and that imposed by the trial court and this, in general, is
when the sentence can be described as 'shocking,'
'startling' or
'disturbingly inappropriate.’
[3]
Although the applicant's counsel contended that the sentence was
excessive, he conceded that a custodial sentence was appropriate.
He,
however, claimed that the most appropriate sentence would have been
one month’s imprisonment.
[14]
In
Director
of Public Prosecutions Kwa-Zulu Natal v Ncobo and Others
,
[4]
the court reiterated that the traditional objectives of sentencing
include retribution, deterrence and rehabilitation and that
it does
not necessarily follow that a shorter sentence will always have a
greater rehabilitative effect. Furthermore, the rehabilitation
of the
offender is but one of the considerations when the sentence is being
imposed, and the nature of the offence related to the
personality of
the offender, the justifiable expectations of the community and the
effect of a sentence on both the offender and
society are all part of
the equation. We were
satisfied
that the specific circumstances
of
this case was serious; that the applicant showed no remorse; had no
intention to repay the monies owed and that the impact his
actions
had on his erstwhile wife and son warranted
a
lengthy period of direct imprisonment.
[15]
In conclusion, this court was satisfied that there was no evidence on
record to suggest that the court
a quo
committed an
irregularity or misdirected itself in imposing the custodial sentence
on the applicant. In the circumstances the sentence
imposed on the
applicant was not inappropriate and shocking to justify interference
by this court. Accordingly, the applicant’s
appeal was
dismissed.
[16]
The order and judgment was served on the applicant on 12 August 2021.
In terms of the court order he had to submit himself
to the
Krugersdorp Correctional Centre within 5 days of the order. The 5
days expired on 17 August 2021.
[17]
On 18 August 2021 the applicant
approached
the urgent motion court of the High Court Gauteng Local Division, in
terms of Rule 45A of the Uniform Rules of Court,
seeking an order
that paragraph 2 of this court’s order be suspended until 17
September 2021. The urgent
application was removed from the roll at the request of the
applicant. The applicant now approaches this
court seeking his
release on bail.
POINT
IN LIMINE
– APPLICANT NOT IN CUSTODY
[18]
The respondent contends that the applicant’s bail had lapsed on
17 August 2021 and he is therefore a “fugitive
from justice”
and has come to court with “dirty hands”. It is further
submitted that, in addition, the provisions
of Section 60 of the
CPA
[5]
must be considered which
specifically states that it is only “
an
accused who is in custody”
that is entitled to be released on bail. Although it is accepted by
the respondent that a
High
Court has a common law power to release a “would-be
appellant”
[6]
and that
section
60 is also applicable to a person already convicted and sentenced to
be released on bail if certain requirements are met,
it is submitted
that the applicant is not in custody and does not fall within the
category of persons eligible for release on bail.
[19]
It is common cause that the applicant was admitted to hospital on 16
August 2021 as a result of experiencing side effects from
COVID-19
which he contracted in December 2020. It is accepted in favour of the
applicant that he was unable to submit himself to
the authorities
because he is currently in hospital. Although the applicant has not
been taken into custody, his bail has however
lapsed and he is
entitled to apply for his bail to be reinstated.
THE
STANDARD TO BE MET TO BE RELEASED ON BAIL AFTER CONVICTION
[20]
It
is trite that there is a different emphasis in respect of bail
pending finalisation of a trial as against bail pending finalisation
of an appeal or special leave to appeal. The difference is that when
bail is considered pending finalisation of a trial, a presumption
of
innocence operates in favour of an accused person until his guilt has
been established in court. I
n
S
v Masoanganye and Another,
[7]
Harms
AP
stated the following in relation to the
onus
on
a convicted person when applying for bail pending an appeal:
“
Since
an appeal requires leave to appeal which, in turn, implies the fact
that there are reasonable chances of success on appeal
is on its own
not sufficient to entitle a convicted person to bail pending appeal…
What is of more importance is the seriousness
of the crime, the risk
of flight, real prospects of success on conviction, and real
prospects that a non-custodial sentence might
be imposed.”
[21]
Recently
in
S
v Rohde,
[8]
Nicholls JA summarised the approach to bail pending an appeal as
follows:
“
[5]
The next difficulty for the appellant is his changed status. The
stark reality that the presumption of innocence no longer operates
in
his favour. As stated by the Court a quo:
‘
Pretrial
release allows a man accused of crime to keep the fabric of his life
intact, to maintain employment and family ties in
the event he is
acquitted or given a suspended sentence or probation. It spares his
family the hardship and indignity of welfare
and enforced separation.
It permits the accused to take an active part in planning his defence
with his counsel, locating witnesses,
and proving his capability of
staying free in the community without getting into trouble. This
would include earning an income
to maintain his financial needs, as
well as funding his legal expenses incurred in consequence of the
trial. Underlying this important
rationale is the fact that the
accused enjoys the fundamental right of being presumed innocent.’
[6]
On conviction, other considerations come to the fore. An increased
risk of abscondment once a person has been convicted and
sentenced to
a lengthy term of imprisonment is inevitable. The severity of the
sentence imposed will be a decisive factor in the
court’s
exercise of its discretion whether or not to grant bail.”
[22]
It is common cause that the applicant was convicted of a schedule 1
offence. Even though the merits of
S
v Masoanganye and Another
and
S v Rohde
relate to schedule 6 and schedule 5 offences respectively, the
principles are equally applicable to the application at hand.
[23]
This court must therefore be satisfied that the applicant has a real
prospect that the SCA would not only interfere with the
sentence
confirmed by this court, but further that there is a real likelihood
that a non-custodial sentence would be imposed. As
alluded to earlier
it was conceded during the hearing of the appeal that the only
suitable sentence is a custodial sentence. In
the bail application
the applicant failed to address this aspect at all and merely states
that his release would be in the interests
of justice. Moreover, the
applicant had received the outcome of its petition to the SCA on
conviction, but failed to disclose this
important factor in his
application. It was only after this court enquired about the position
during this application and the matter
stood down that we were
informed that his petition against conviction was refused by the SCA
on 12 August 2021.
[24]
The prospects of success are relevant in an assessment of whether to
release the applicant pending finalisation of an application
for
leave to appeal.
[9]
There has to
be a real prospect on appeal in that a non-custodial sentence might
be imposed, such that any further period of detention
before the
appeal is heard would be unjustified.
[10]
The offence for which the applicant was convicted is not only serious
but prevalent.
In
S
v Visser,
[11]
the
court held that:
"
Effective
enforcement of maintenance payments is necessary not only to secure
the rights of children, but also to uphold the dignity
of women and
promote the constitutional ideals of achieving substantive gender
equality. It is therefore important that courts
regard deliberate
failures to comply with maintenance orders as serious offences and
punish such failures accordingly."
[25]
It is trite that where offences are not only serious but prevalent
the personal circumstances of an offender play a less significant
role as compared to the interests of the community. The circumstances
of this case justified a lengthy period of imprisonment.
[26]
We have come to the conclusion that there are no prospects of success
on appeal. It is accordingly not in the interests of
justice that the
applicant be released on bail, pending the application for special
leave to appeal the sentence. The application
should, for this reason
alone, be refused.
THE
APPLICANT’S MEDICAL CONDITION
[27]
The applicant alleges that he requires medical treatment and that he
should be released on bail. He stated that on 13 August
2021, a day
after the order of this court was served on the applicant, he
consulted a doctor complaining of chest pain, palpitations
and
shortness of breath. The doctor was concerned that it might be
consequences of COVID -19, that the applicant contracted in
December
2020. On 16 August 2021 he was admitted to hospital for “
further
investigation and treatment including a coronary angiogram”
.
No further medical reports were filed.
[28]
In
S
v Van Wyk,
[12]
a
case dealing with an accused person who had not been found guilty
yet, the SCA stated that insofar as an accused does not receive
proper medical attention whilst in detention, she or he has other
legal remedies at her or his disposal and, in general, bail is
not
the remedy for the actions and omissions of the prison authorities.
The court stated that what remains important is the fact
that
the restrictions of her or his detention and
attendance
at the trial is not ideal for a person in a weak physical condition.
The court held that the interference with her or his freedom is an
important factor which has to be given much weight when deciding
on
the interests of justice, but the medical condition of the accused
must be weighed against the other factors and must not be
considered
in isolation. (Emphasis added)
[29]
In
S
v Rudolph
[13]
the SCA reaffirmed this
principle and stated that an arrested person is entitled ‘
to
conditions 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;…”.
The
facts of
Rudolph
are
also distinguishable from the facts
in
casu
as
it dealt with the rights of an accused person still standing trial,
and who’s guilt has not yet been established.
[30]
The applicant has been found guilty and his appeal against sentence
and his petition to the SCA against the conviction has
been
dismissed. The applicant’s required medical attention on its
own, does not warrant his release on bail.
Should
the applicant not be granted the required nutrition and medical
treatment he requires; he would have various legal remedies
available
to him in this regard.
CONCLUSION
[31]
It is not in the interests of justice that the applicant be released
on bail pending his petition in terms of
section 16(1)(b)
of the
Superior Courts Act 10 of 2013
.
In
the circumstances, the following order is made:
1.
The application is dismissed.
L.WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
E.M
MOLAHLEHI
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG.
APPEARANCES
For
the applicant:
Advocate R. van
Schalkwyk
Instructed
by:
Muthray & Associates Incorporated
For
the respondent:
Advocate S.H. Rubin
Instructed
by:
Office of the Director of Public Prosecutions, Johannesburg
Date
of hearing:
20 August
2021
Date
of judgment:
23 August 2021
[1]
The
order made by this court read as follows:
(a)
The
application for leave to appeal is postponed
sine
die.
(b)
The applicant is ordered to file his
petition with the Supreme Court of Appeal within two weeks of the
date of today.
(c)
As soon as the outcome of the petition
proceedings is made available to the appellant, he will approach
this court within one
week in order to arrange a date for this
matter to the head.
(d)
Both parties may approach the court for a
date.
[2]
Unreported Judgment of Gauteng Local Division by Mohlahlehi J
(Windell J concurring). Case number A33/2019 Potgieter v The State
(12 August 2021).
[3]
S
v Malgas
(117/2000)
[2001] ZASCA 30
; See also
S
v Pillay
[1977]
4 All SA 713
(A)
717;
1977
(4) SA 531
(A)
535E-G
,
wherein the court held that : "As the essential enquiry in an
appeal against sentence, however, is not whether the sentence
was
right or wrong, but whether the court in imposing it exercised its
discretion properly or judicially, a mere misdirection
is not by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature, degree of
seriousness that it
shows directly or inferentially, that the court did not exercise its
discretion at all or exercised it improperly
or unreasonably. Such a
misdirection is usually and conveniently termed one that vitiates
the court's decision on sentence."
[4]
2009
(2) SACR 361
[SCA] at paragraph 22.
[5]
Section
60(1)
“An accused who is in custody in respect of an offence
shall, subject to the provisions of
section 50(6)
, be entitled to be
released on bail at any stage preceding his or her conviction in
respect of such offence, if the court is
satisfied that the
interests of justice so permit.”
[6]
S
v Hlongwane
1989
(4) SA 79
(T) at 102A-G
[7]
2012(1)
SACR 292 (SCA)
at paragraph 14
[8]
2020 (1) SACR 329 (SCA)
[9]
Hlongwane
at
102D-G
[10]
R
v Mthembu
1961
(3) SA 468
(D) and
S
v Scott-Crossley
2007
(2) SACR 470 (SCA)
[11]
2004
[1] SA CR 393 [SCA] at 399 E – F.
[12]
2005
(1) SACR 41
(SCA) at paragraph [9] at 45
h
- j
.)
[13]
2010(1)
SACR 262 (SCA) at paragraph 11.