Brits v S (CA & R 29/21) [2021] ZANCHC 21 (21 July 2021)

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[2021] ZANCHC 21
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Brits v S (CA & R 29/21) [2021] ZANCHC 21 (21 July 2021)

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t
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4
•
r
I
N
THE
HIGH
COURT
OF
SOUTH
AFRICA
(
N
ORTHERN
CAPE
PROVINCIAL
DIVISIO
N
,
KI
M
BERLEY)
Case
No:
CA
&
R
29/21
In
the matter between:
SURETHA
BRITS
Appellant
and
THE
STATE
Respondent
Coram:
LeverJ
JUDGMENT
Lever
J
1.
This
is an appeal against the refusal of bail by the Magistrate's Court
for the District of Namaqualand, held at Pofadder. The appellant
has
been charged with
inter
alia
pre-meditated
murder in circumstances which
amount
to
the
contract
killing
of
her
erstwhile
husband.
2.
The
Acting Director of Public Prosecutions in the Northern Cape issued
the certificate contemplated in section 60 (11A)(a) of the
Criminal
Procedure Act
[1]
(the Act)
stating that the charges the appellant faced were charges listed in
Schedule 6 of the Act. This certificate was handed
in as Exhibit "A"
in the court
a
quo.
It
was not in dispute in
the
court
a
quo,
and
it was also not placed in issue in the present appeal, that the
provisions of s60(11)(a) of the Act had to be complied with in
assessing whether the appellant was to be admitted to bail or not.
3.
The
provisions
of
s60(11)(a)
of
the
Act
read
as
follows:
"60(11)
Notwithstanding any provision of this Act, where an accused is
charged with any 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
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 interest of
justice permit his or
her
release;
.
.."
4.
In the court
a
quo,
the appellant gave
viva
voce
evidence. The appellant had
legal representation in the court
a
quo.
The transcript of the
proceedings in the court
a quo
shows
that the appellant chose
not
to deal with the merits of the case against her. Although a fair
representation of the
evidence
against
her
was put
to
her in cross-examination,
she,
on
legal
advice,
chose
not
to
deal
with
the
merits
of
such
evidence.
5.
In her evidence in chief, the appellant
adduced evidence on three broad grounds, relating to her personal
circumstances, on which
she
sought
to satisfy the court
a quo
constituted exceptional
circumstances that the interests of justice permitted her release on
bail.
6.
In short, the appellant sought to rely
on her personal circumstances in her efforts to adduce evidence to
convince the court
a quo
that
the
required
'exceptional circumstances' existed that the interests of justice
permitted her release on bail. The three grounds relied
upon by the
appellant were: Firstly, her state of health and the steps required
to ensure her well-being; Secondly, her and the estate
of the
deceased's business interests; and
Thirdly, the physical, material and emotional
well being of her three children.
7.
After a creditable display of the art of
cross-examination Mr Cloete, who also appeared for the State in the
court
a quo,
had
the appellant
concede
that there was nothing that was immediately life threatening
in her state of health. Further, that
her current health needs could and had been properly
managed
whilst in custody.
8.
In respect of appellant's and the
deceased's business interests, appellant had conceded in
cross-examination that she had closed down
her business SSS Suppliers
several months before her arrest. Also, that the farm had been rented
out and would bring in a steady
rental income and consequently did
not need management. In respect of the hotel and accommodation
business it was submitted that
there
were employees that knew their jobs and
that a manager could run the hotel and accommodation business.
Appellant also conceded that
the properties that belonged to her
erstwhile husband fell into his estate and that she could not in any
event make decisions that
would
relate
to such properties and that such decisions fell to be taken by an
executor
in
the
estate.
9.
In regard to her children, the appellant
conceded that their material and financial needs were taken care of.
Only their emotional
well being
was
placed
in
contention.
10.
The
position as to when a court in dealing with a bail appeal may
intervene and set aside the decision of a lower court is set out
in
section
65(4)
of
the
Act
[2]
.
The
relevant
sub-section
reads
as
follows:
"The
court or judge hearing the appeal shall not set aside the decision
against which the appeal is brought, unless such court
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."
11.
How
this section is to be interpreted and applied has created something
of a controversy. In S v PORTEN
[3]
Binns-Ward AJ (as he then was) considers the classic interpretation
set out by Hefer J in S
v
BARBER
[4]
. Binns-Ward AJ
concludes that an appeal
court
in a bail appeal is not as constrained as is set out in the
dicta
of
Hefer J in Barber's
case.
12.
Binns-Ward
AJ argues that it is necessary to determine whether the discretion
afforded to the lower court under the provisions of
s60(11)(a) is a
discretion in the wide sense of the word or if it is a discretion in
the narrow sense. Binns-Ward AJ concludes that
it is indeed a
discretion in the wide sense that is exercised.  Accordingly, an
appellate court can " ...interfere with
the lower court's
decision of a bail application if it is satisfied that the lower
court's
decision
is
wrong."
[5]
13.
It
is important to note that Binns-Ward AJ was careful to point out that
"Before embarking on that determination I should, however,
say
that even when a discretion in the wider sense is exercised by the
court
a
quo,
an
appellate Court will give due deference and appropriate
weight
to the fact that the
court
or tribunal of
first
instance is vested with a discretion and will eschew any inclination
to
substitute
its own decision unless it is persuaded that the determination of the
court or tribunal of first instance was wrong
.
That
is the
dicta
quoted
from Barber's case, quoted above."
[6]
14.
Mr
Cloete who appeared for the respondent in this matter argued that the
dicta
in
Barber's case
[7]
meant that the
appellant had to show that the learned magistrate in the court a quo
exercised her discretion on either
the
facts
or
the
law
on
an
incorrect
or
wrong
basis.
15.
Mr
Cloete then submitted that Porthen and Barber were reconcilable
because
both
had
been
cited
with
approval
in
S
v
FAYE
[8]
.
16
.
In
my view Mr
Cloete
has
misread
both
Porthen's
case
and
Faye's
case. In
respect
of what is required to be established in a bail appeal
Binns-Ward
AJ in Porthen said: "Insofar as the quoted
dictum
in
5
v Barber
(supra)
might be amenable to be construed to suggest that the appellate
Court's power to intervene in terms of s65(4)  of the
CPA is
strictly confined, in the sense of permitting interference only if
the magistrate has misdirected him- or herself in the exercise
of his
or her
discretion
in  the  narrow  sense,
I
consider  that
it
would  be incorrect
to
put
such
a
construction
on
the
subsection;..."
[9]
17.
In
S v Faye Petse ADJP the Acting Deputy Judge President clearly aligns
himself with the approach taken by Binns-Ward AJ in Porthen's
case
[10]
.
18.
Then the next step is to determine
whether in the court
a quo
the
appellant discharged the onus of establishing that exceptional
circumstances existed which in the interests of justice permitted
her
release
on
bail.
19.
The standard of proof required in
discharging the aforesaid onus is the normal civil onus, that is
proof established on a balance
of probabilities.
20.
The
concept of 'exceptional circumstances' has not been defined in the
act. The concept has been traversed in a number of cases. In
Killian
v
S
[11]
Binns-Ward J stated:
"The
import of the 'exceptional circumstances' test has  been
traversed in a number of judgements. In S v Jonas 1998 (2)
SACR
677 (SE) at 678E-G it was held that the term does not  posit a
closed list of circumstances. Whether a court may be satisfied
that
exceptional circumstances exist depends on the facts on the facts and
circumstances established in the given application. Whereas
'exceptional' denotes something 'unusual, extraordinary, remarkable,
peculiar
or
simply
different'
(see
e.g.
S
v
Petersen
2008
(2)
SACR 355
(C) at para [55], it has been observed that '(s)howing
"exceptional circumstances" for the purposes of s60(11) of
the CPA
does not posit a standard that would render it impossible for
an unexceptional, but deserving applicant to make a case for bail'
(S
v Josephs
2001 (1) SACR 659
(C) at 6681 and S v Viljoen
2002 (2) SACR
550
(SCA)). They do not have to be circumstances 'over and
beyond
and generically  different  from  those enumerated
in ss60(4) to (9)', which are circumstances
to  which
regard is had in run of the mill bail applications not subject to
the  strictures  of s60(11).
It  is clear,
however, that they must at least be compelling  enough to take
the
case
made out
for
the
granting
of
bail
beyond
the
ordinary."
.,
21.
It
is also true that all of the factors normally  relevant are
examined cumulatively   together   with
any    special circumstances or considerations
the appellant might raise to determine  whether she has
established   'exceptional circumstances
as
contemplated
in
s60(11)
of
the
Act
.
[12]
22.
The appellant has raised certain issues
where it is alleged that the learned
magistrate
in
the
court
a
quo
may
have
misdirected
herself. In
this regard
the
appellant
raised
5
issues,
namely:
22.1.
She approached the matter from the
premise that the appellant had to prove " ...exceptional
circumstances which 'require' her
release on bail whilst s60(11)(a)
uses the word 'permit' as opposed
to
the
word
require;
22.2.
She found that the personal
circumstances of the appellant would in any event be the same if she
is convicted. In doing so she did
not give any, alternatively
adequate consideration  to the
case
law
that
release
on
bail
is
a
means
to
giving
effect
to
the presumption of
innocence
set out in the Constitution
s35(3)(h));
22.3.
She questioned the  purpose of bail
if  a person that committed an offence
could
not
be kept in custody;
22.4.
She criticised the appellant for
electing not to answer the State
case
and argued that the appellant was in law entitled to do so; and
22.5.
She did not give any, alternatively
adequate  consideration  to the legislation and case law to
the effect that the
primary objective of bail is to
ensure that an accused  stands trial and that everyone who is
arrested for allegedly
committing  an offence has the
right to be released on bail, subject  to reasonable
conditions
if
the
interests
of
justice
permit.
23.
In oral argument Ms Erasmus who appeared
for the appellant submitted that what is set out in 22.5 above is a
conclusion that is justified
on
the basis
of
the
contentions made
in
paragraphs 22.1,
22.2
and
22.3
above.
24.
In dealing  with the contention
that the learned  magistrate in the court
a
quo
approached the matter form
the  starting  point  that  the appellant
needs to  establish
circumstances  that require her
release on bail. Reading the judgment of the court
a
quo
in its entirety I am inclined to
think that was nothing more than inelegant and inaccurate use of
language on the part of the learned
magistrate. I do not think that
it
amounts
to
more
than that.
25.
However, the submission that the learned
magistrate found that the appellants circumstances  would
be the  same if
she were convicted, as set out in
paragraph 22.2 above, is problematic. It indicates an attitude that
shows a lack of appreciation
of what the presumption of innocence
means.
26.
In regard to the submission made in
paragraph 22.3 above that the learned magistrate questioned the
purpose of bail if a person who
committed an offence cannot be kept
in custody. Consulting the passage in the record referred to in
support of  this  contention,
I believe a single
sentence has been taken out of context to make this point. A fair
reflection of  what the  learned
trial
magistrate  was trying
to
say will be attained from reading the four preceding paragraphs as
well as the two following paragraphs. If this is done, it
does
not support
the
contention
made against
the
learned
magistrate.
27.
The submission that the learned
magistrate was not  entitled  to criticise the fact that
the appellant chose not to answer
the State case as the law allowed
her to do so. Here Mr Cloete submitted, that if the relevant passage
of the record is read in its
correct  context,  the learned
magistrate did nothing more than give effect to the law which
maintains that the appellant
is perfectly  within  her
rights  not  to answer the State case, but in making that
choice the appellant
must accept
that
consequences
might
flow
from
not
meeting
the
case
put
forward by the State. The only consequence that can flow from
exercising
her
rights
in
this
context
is
that
the
prima
facie
case
put
up
by the
State
stands
unchallenged.
In
that
context, I
agree
with
Mr
Cloete.
28.
In regard to the submission in paragraph
22.5, this is true as far as it goes but due regard has to  be
had to  the requirements
of s60(11)(a) of the Act. The
appellant has to establish on the  basis set out above that
exceptional circumstances exist, which
the interests of justice
permit the release of the appellant on bail. It goes without saying
that the considerations set out in sub-paragraphs
60( 4) to
60(9)  form a part of this evaluation.
29.
On the basis set out in Porthen's case I
am entitled to consider the evidence and determine if I
am entitled to exercise my
own discretion
.
30.
The appellant led evidence on three main
areas to try and establish exceptional circumstances that would show
that  the
interests  of justice  would permit
her to be released on bail. These three areas were:  Firstly,
her state of health;
Secondly,  the  businesses operated by
her erstwhile husband and herself; and thirdly, the welfare of her
children.
31.
In her evidence in chief the appellant
was at pains to make out a case that her medical conditions were life
threatening. This approach
did not survive cross-examination. The
appellant was forced to concede that her medical conditions were
stable, that she was receiving
her medication as well as medical
treatment and had access to her family doctor if required and if the
appropriate arrangements could
be made. Nonetheless, it is also clear
that the appellant was not in the pink of health. The evidence shows
that at this point in
time her medical conditions
are not
life threat
ening
.
32.
In and of themselves for the reasons set
out herein, the medical conditions of the appellant do not constitute
the required exceptional
circumstances. That is however not the end
of the matter  the appellant's health issues will be weighed
with the other factors
to determine whether cumulatively  with
the  other relevant  issues she has established
the
required
exceptional
circumstances.
33.
The issue of her and the deceased's
businesses is also not as pressing
as
appellant made out in her evidence in chief. In cross-examination,
appellant had to concede that her
business, being SSS Suppliers, was closed down by the appellant
several months before her arrest.
Her version of businessmen waiting
in the wings to invest was too vague
to
be given any credibility. The farm owned by the deceased is let and
no management is required. In any event the farm falls within
the
estate of the deceased and without an executor the appellant would
not be able to
make
decisions
in
respect of this property.
34.
The other business which involves the
Pofadder Hotel and the self­ catering chalets was on the evidence
conducted as one business.
The evidence establishes that these
properties also belonged to the deceased. Consequently, they also
fall into the  estate
of  the deceased. The
appellant's evidence established that she  was employed as a
manager in the accommodation  business.
The appellant in
her evidence concedes that there are staff members who can on a
day-to- day level keep the hotel going. However,
she maintains
that she is the only person that has signing powers on the banking
accounts.
35.
In respect of the farm and the
accommodation business it is probably more urgent for an executor to
be appointed and take the reins
of the businesses and appoint a
manager where required than for the appellant to take up management
of such businesses. It is also
not entirely clear how these
businesses have managed  whilst  the appellant has been
detained if she is the only person
who can operate the relevant bank
accounts. Again, in and of themselves the business interests do not
constitute the required exceptional
circumstances. It remains to be
seen whether taken together with the other remaining issues,
the required
exceptional
circumstances
are established.
36.
The
remaining
issue
is
the  well
being
of
the
appellant's 3
children. Here
the
appellant
in
cross-examination
conceded
that
financially
the
needs
of
the
children
were taken care of. She also conceded
that her own mother, together with her
sister and a person described as a day mother took care of the
physical needs of the children.
What remains
is the emotional needs of the children.
The evidence in this regard was that of the appellant that she had a
close relationship with
her 3
children
who were aged between 10 and 12 years old. That the children needed
her emotionally.
37.
Ms
Erasmus submitted on
the
basis
of
s28(2)
of
the
Constitution
[13]
that the needs of the children are of paramount importance in every
matter concerning the child. She further submitted that it was
common
cause or at least that it was not placed in issue that she and
the
children had a close bond and they depended upon each other for
emotional
support.
38.
Mr Cloete took exception to the
contention that it was common cause that there was a close emotional
bond with the children and that
they needed her emotional support. He
submitted that  it  was trite that every child would need
his or her mother. He submitted
that the only way he could challenge
appellant's assertions would be to put the children on the
witness stand and stated that
this would  traumatise the
children
and as a
responsible
prosecutor
he
would
not
do
it.
39.
More important is Mr Cloete's assertion that
exceptional circumstances
requires
that
something
more
than
appellant's mere say so
is required to
establish exceptional circumstances in regard to the emotional
well-being of the children in the context of a bail
application
subject to the provisions of s60(11)(a) of the Act. Further that to
qualify as exceptional circumstances the appellant
would have
to establish a particular need for  emotional support in one or
more of the children that went beyond the normal
requirement for
emotional support. That the
onus
was
on
appellant
to
establish
this.
40.
He submitted  that independent
evidence  would have been available as on appellant's own
evidence, she and the children
underwent trauma counselling. He
submitted, also on the appellant's  own evidence that it
appeared that the children did better
under trauma counselling than
the appellant herself. He submitted that if appellant wanted
to
rely
on
this
ground
the
evidence
of
the
trauma
counsellor ought
to
have
been
placed
before
the
court.
41.
Mr Cloete properly concedes that the
circumstances for  the children are not  ideal. However, he
maintains,  and the
evidence supports him in this, that insofar
as material  and financial  needs and physical  care
of the children are
concerned, they are better
off
than most children whose
parents
face criminal
charges
and
detention
awaiting
trial.
42.
To the  extent that Mr Cloete
contends that it is trite and not out of the ordinary for a child to
require his or her mother
for emotional support
in
difficult
circumstances, I
cannot
but
agree
with
him.
In
Mr Cloete's assertion that in respect of
the emotional well being of the children in the circumstances of a
bail application subject
to the provisions of s60(ll)(a) of the Act
something more is required than just
the
appellant's
say
so. I
am
also
constrained
to
agree
with
Mr
Cloete.
Clearly
the
onus
would
be
on
the
appellant
to
establish
this special need.
43.
Mr Cloete contends that the
circumstances of the children of the appellant are not exceptional
but ordinary. In and of themselves
the position of the children in
the present case do not amount  to exceptional circumstances,
but I need to look at the overall
cumulative
effect
of
all of
the
circumstances.
44.
Although Mr Cloete has submitted and not
without cause that the appellant has the  propensity to threaten
violence, I  do
not believe it has been established that there
is a likelihood that she may harm anyone or endanger the safety of
the public in
general.  Nor do I believe
that
there
is
a
likelihood
that
she
will
commit
a
schedule
1 offence.
45.
It is clear from the evidence that the
appellant  has  historical  and family ties to the
area. Also, the
evidence  shows that  her passport
has expired. I
do
not
believe
the
appellant
is a
likely
flight
risk.
46.
The opportunity to influence or
intimidate witnesses has been minimised as the investigation has been
completed in the sense that
witness statements have already been
taken. However, the evidence shows that the appellant contacted a Ms
Fouche twice. Although
some explanation has been given, I'm not
entirely satisfied with the explanation in relation to the second
incident (the Red Sands
incident). The evidence shows that appellant
disregarded  the warning of the Investigating Officer and the
warnings of her own
legal representative. Also, the appellant also
sought to mislead the police in their initial investigations by
trying to incriminate
her brother-in­ law and certain employees
of the deceased in circumstances where such allegations
proved to
be baseless. This evidence does show
that
if
given the opportunity the appellant might conceal or destroy
evidence, but
on
the available evidence, I
cannot
find that there is a likelihood that she would do so.
47.
I cannot find that there is a likelihood
that the appellant, if she was released
on
bail,
would
undermine
the
criminal
justice system
.
48.
There is no evidence to  show that
if the appellant  was released  on bail, it would disturb
the public order or undermine
public peace and security.
49.
Although at this stage of the
proceedings it is not the function of this court to assess the
evidence in relation to innocence or
guilt of the appellant, on the
evidence placed on the record by the State there is clearly a strong
prima facie case for
the
appellant to answer. Appellant
is
entitled to exercise her right to silence. The consequence of not
dealing with the merits of the State case is that the strong
prima
facie case set up by the State goes unchallenged. If the appellant
had in dealing with the  merits of the State
case
established  that the case was weak or open to challenge it
would have strengthened appellants case for bail significantly.
At this stage  of proceedings,  it  would  not be
legitimate
to
take
this
issue
any
further
than
that.
50.
The right to freedom set out in s12 of
the Constitution is noted as is the right as is the right to bail
under s35(l)(f) of the Constitution.
I will endeavour to give
effect to those rights in the context of s60(1l)(a) of the Act.
Nonetheless
I
have
to remind myself that the starting point is that the legislature
,
due to the prevalence of certain crimes,
enacted s60(1l)(a) of the Act. This section places a burden
of proof on the appellant to establish
evidence that would satisfy this
court
that exceptional circumstances exist that would permit her to be
released
on
bail.
51.
.
My
role, as I understand it, is to  consider  all of the
evidence  and to make a 'value judgment' on all of that
evidence
to  determine whether the appellant has
discharged  the  evidential  burden  placed on
her  to
establish  exceptional  circumstances
on  the   particular facts of the relevant case which,
in the interests  of  justice  would permit her
release
on
bail.
52.
On all of the evidence placed on the
record in
this
bail
application the value judgment that I make is that the appellant has
not established the required exceptional circumstances  that
are  sufficiently compelling to take her case for bail
beyond the ordinary in order to show
that
the
interests
of
justice
would
permit
her
release
on
bail.
In
the
circumstances:
1)
The
appeal
is
dismissed.
Lawrence
Lever
Judge
Northern
Cape Provincial
Division
Counsel
for
the
appellant:
Ms
Erasmus
oio
Duncan
&
Rothman
Counsel
for
respondent:
Mr
Cloete
oio
the
OPP
Date
of Hearing:         16 July 2021
t
Date
of Judgment:       21 July
2021
[1]
Act 51 of 1977.
[2]
Criminal Procedure Act, above.
[3]
2004 (2) SACR 242
(c) at para [8], [9], [10], [11], [12] and [14].
[4]
1979 (4) SA 218
(D) at 220 E-G.
[5]
Porthen., above at para [14].
[6]
Porthern., above at para [11].
[7]
Barber.,
above
at
220
E-G.
[8]
2009
(2) SACR 210 (Tk)
[9]
Porthen.,
above at para (16].
[10]
S v Faye., above at para [13].
[11]
(2021]
ZAWCHC 100 (24 May 2021) at para [4].
[12]
S
v H
1999 (1) SACR 72
(W)
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[13]
Act 108 of 1996.