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2021
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[2021] ZANCHC 48
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Ockhuys v S (CA & R 6/2021) [2021] ZANCHC 48 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
CA & R 6/2021
Heard:
12/08/2021
Delivered:
03/ 09/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
DAVID
OCKHUYS
Applicant
and
THE
STATE
Respondent
JUDGMENT
ON BAIL APPEAL
Mamosebo
J
[1]
The
appellant, who appeared in person, appeals against the refusal
of a
Magistrate in Calvinia to admit him to bail on 02 January 2020,
having been
arrested on 11 December 2019 on a charge of murder
of his
7-month old son. The appeal is brought in terms of s 65(l)(a) of the
Criminal Procedure Act, 51 of 1977 (the CPA) .
[1]
The State is opposing
this
application.
[2]
Section 65(4) of the CPA stipulates:
"(4)
The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such
a court or
judge is satisfied that the decision was wrong, in which event the
court or judge shall give the decision which in its
or his [or her]
opinion the lower court should have given."
[3]
What stands for determination is whether the decision of the
Magistrate
not to admit the appellant to bail was wrong.
[4]
The offence with which the appellant is charged falls under Schedule
5
of the
Criminal Procedure Act, 51 of 1977
, as amended. It therefore
follows, as required by
s 60(11)(b)
of the CPA, that the appellant
carries the
onus
to adduce evidence to the satisfaction of the
court that the interests of justice permit his release on bail.
[5]
The record of the bail hearing did not form part of the papers before
me. I have only had sight of the transcribed record of the bail
hearing before Magistrate Kemp. Ms Natasha Jannetjies appeared for
the State while Mr Makhaza represented the appellant during the bail
hearing at the Magistrates' Court.
[6]
The appellant has submitted that the Magistrate was wrong in refusing
him bail based on the following grounds as far as they could be
extracted from his written heads and oral argument:
6.1
That he was misled by his attorney as his instruction to him was to
depose to an affidavit but his attorney
called him to testify;
6.2
That the bail-hearing transcript of 2 January 2020 is not a true
reflection of what transpired in court
that day;
6.3
Since he was not placed in possession of his wife's statement
supporting her application for the interim
protection order, he was
unable to defend himself properly against the allegations made that
he posed a threat to his family and
the community;
6.4
He was never given any chronic medication in prison; and
6.5
The Magistrate refused him permission to bring an application in
terms of
s 342A
based on the delay for his 30- day mental
observation.
[7]
The appellant is a 43-year old man, married for about four years. He
has
resided at Loeriesfontein for approximately two years with his
wife and two-year old daughter. He also has a 15-year old daughter
who resides with her mother in Springbok. He is unemployed but has
registered a private company for "Events Management, Catering
and construction". He matriculated in 1995. In 2015, he obtained
a BA Degree in Development and Environment as studied from
Stellenbosch University. He is due to run a nonprofit
organisation (NPO) known as Loeriesfontein Advise Development Welfare
Centre and is only awaiting the NPO Certificate to commence
operations. He is not the holder of a passport or any travel
document.
[8]
The appellant has admitted the following previous convictions: That
on
2 November 2006, he was found guilty of assault and was cautioned
and discharged; on 02 November 2006 he was found guilty of abduction
or kidnapping [the record does not show the sentence]; on 25 May 2009
he was convicted of malicious damage to property and sentenced
to a
fine of R2,000.00 or 90 days imprisonment which was wholly suspended
for five years; on 16 April 2012 he was convicted of
a contravention
of
s 17
of the
Domestic Violence Act, 116 of 1998
and was sentenced
to R800.00 or 3 months imprisonment; and on 13 February 2018 he was
convicted of reckless and/or negligent driving
but the sentence is
not reflected on the record.
[9]
More importantly, in the appellant's further testimony he admitted
that
he was on a RS00.00 bail in another matter and was to return to
Court on 22 January 2020 at Loeriesfontein. When asked whether there
were any bail conditions attached to his release this was his
response:
"Mnr
Makhaza:
Was
daar enige voorwaardes wat aan u gestel was
toe
u borg
gekry
het?
Applikant:
Ek
praat onder korreksie, ek wit nie die hot mislei
nie.
Maar volgens my, dis hoekom ek aangevra het vir die vir die
recordings, volgens my was dit ek moenie 'n soortgelyke misdaad
pleeg
nie,
maar ek praat onder
korreksie."
[10]
The following testimony also bears relevance:
"Mnr
Makhaza: Soos ek
oak vroeer vir u meegedeel het, is dit so
dat wanneer u
aansoek doen vir borg moet u redes aan die hot voorhou waarom u voe/
dit in belang van geregtigheid is dat u op borg
vrygelaat word? Wat
is u redes vandag wat u voe/ u moet op borg
vrygelaat
word?
Applikant: Dankie,
ja.
My redes is as volg is dat ek voel ek
word
geviktimiseer deur die plaaslike polisie in Loeriesfontein. Soos ek
seek het nou borg, maar
dit was 'n onregmatige
arrestasie. Dan op die oomblik ek het 'n gruwe misdaad gepleeg, maar
die sielkundige sat dit bepaal en die
maatskaplike werker, maar
volgens my was ek nie myself nie. En op die oomblik, ek kry nie saans
geslaap nie.
Ek het nie 'n eetlus nie. Ek het al 'n
hele paar kilos afgeval. So van my kant af voe/ ek net as ek kan op
borg uitgegaan het, kan
ek ten minste
'n sielkundige,
want dit sielkundige verslae sat in
elk geval by die
hot verhoor moelik wees. 'n Sielkundige kan sien, die dokter kan gaan
sien asook 'n
maatskaplike werker kan gaan sien."
[11]
The appellant informed the Magistrate that he would afford bail of
R1,500.00. When asked
about his address should he be released on
bail, he initially gave his parents' address which, seemingly, is in
close proximity
to his wife's residence. The appellant's wife and the
mother to his 15-year old child both took out protection orders
against him.
[12]
Under cross-examination, it emerged that members of the South African
Police Services (SAPS)
were at the appellant's residence to serve him
with an interdict. He confirmed having breached the conditions of his
bail. The
prosecutor put it to him that it was his attorney who
informed the Court that the SAPS had stated that they were unable to
guarantee
the appellant's safety when he was demanding to attend his
son's funeral.
The
State closed its case without calling any witnesses.
[13]
Most of the incidents that the appellant was involved in took place
after the bail hearing.
For example, the period of delay for the 30-
day observation as counted by the appellant went beyond the hearing
date. Mr Hollander
pointed out in this Court that the appellant is
now number 13 on the list of those awaiting the 30-day observation.
From the pattern
of those assessed per month, it is possible he will
only be assessed in the next four months.
[14]
I now consider the grounds raised by the appellant.
14.1
Ground
6.1:
Being misled by his attorney
on whether to file an affidavit or to testify. Schreiner JA in
R
v Matonsi
1958 (2) SA 450
(A) at
456 A - D, made the following insightful remarks:
"I
have found no Roman Dutch or South African Authority which supports
the view that the accused in a criminal case can question
his
counsel's conduct on the trial and claim relief because counsel
"prevented" him from giving evidence... Such Roman
Dutch
writers as I have consulted emphasise the importance and high status
of the advocate and I see no reason to doubt that his
authority over
the conduct of the case which he had been instructed to fight on
behalf of a client was quite as full as that of
the English barrister
(cf. Klapper v van Rensburg
1920 E.D.L. 239
at p. 242). The English
cases show that in general, trials cannot be conducted partly by the
client and partly by counsel. Once
the client has placed his case in
the hands of counsel the latter has complete control and it is he who
must decide whether a particular
witness, including the client, is to
be called or not. So in Seinfen v Lord Chelmsford
157 E.R. 1436
at p.
1449, POLLOCK, C.B., states the Court's view that,
"a
counsel has complete authority over the suit, the mode of
conducting it, and all that is incident to it
-
such as
withdrawing the record, withdrawing a Juror, calling no witnesses, or
selecting such as, in his discretion, he thinks ought
to be called,
and other matters which properly belong to
the suit and
the
management and conduct of the
trial".
See
also
S
v
Majola
1982 (1) SA 125
(A) at 133 D - G and
S v DD
2015 (1)
SACR 165
(NCK) at 170d - 171a.
Regard
being had to the aforementioned authorities, it follows therefore,
that the contention by the appellant cannot be a ground
of appeal.
14.2
Ground 6.2:
That the transcript is not a true reflection of
what transpired in court during the bail application. The appellant
does not explain
in which way the attached bail record is
(in)complete and has been rectified as correct. It follows that the
contention by the
appellant pertaining to the transcript also stands
to fail.
14.3
Ground 6.3:
Not being placed in possession of his wife's
statement supporting her application for an interim protection order
prevented him
from properly preparing a defence on the allegation
that he is a threat to his family and the community. It is not in
dispute that
the appellant was legally represented during the bail
hearing. He was afforded an opportunity to persuade the bail court
that the
interests of justice permitted his release and he and his
attorney had placed his version before court. This contention, in my
view, can also not be a ground of appeal.
14.4
Ground 6.4:
He was never given chronic medication in prison. I
have paraphrased the remarks by Comrie AJA in
S
v Van
Wyk
2005 (1) SACR 41
(SCA) at 45 para 9 regarding proper
medical attention. He has other legal remedies at his disposal. Bail
is not the solution for
medical shortcomings in prison. What is
crucial is to weigh all the factors and not to isolate one over the
others.
14.5
Ground 6.5:
Being denied permission by the Magistrate to bring
an application in terms of
s 342A
for the delays in respect of the
30-day mental observation. This issue also came after the bail
application before the Magistrate.
The appellant was arrested on 11
December 2019 and his bail application was heard on 2 January 2020.
The issue of the delay did
not arise. In any event, while it cannot
be a sound ground to be admitted to bail, it is common cause that the
appellant was initially
number 58 on the list and is now number 13.
[15]
The appellant's contention that the Magistrate had predetermined to
deny him bail is not
borne out by his well-written judgment. He
considered the following factors:
15.1
that he was charged with murder;
15.2
there are two domestic violence interdicts issued against him;
15.3
he has five previous convictions and three pending cases against him;
15.4
of importance, as remarked by the Magistrate, is that while the
appellant was out on bail he committed a further offence.
15.5
The following pronouncements by the Magistrate are also relevant:
"Maar
dit is duidelik as 'n mens
[na]
die gemeenskap se houding kyk,
as 'n mens u huidige vrou kyk wat bang is vir u en sy het reg om bang
te wees vir u, dit is hoekom
sy 'n interdik teen u gekry het. En na
bewering vermoor u u eie kind. En dis juis wat die staat se en die
gemeenskap se u is
'n gevaar vir die gemeenskap en
soveel te meer vir u eie familie. So die hot beskou dit nie as in
belang van geregtig
[geregtigheid]
nie.
Ek
gaan
nie
vir
u
borg
toestaan
nie."
[16]
It is trite that when a court is required to exercise its discretion
to allow a detained
person to bail, it has to balance his or her
right to liberty against the interests of justice. The correct
approach is as stated
by Harcourt J in
S
v
Smith
and
Another
1969 (4) SA 175
(N) at 177 E - F.
"The
Court will always grant bail where possible and will lean in favour
of and not against the liberty of the subject provided
that it is
clear that the interests of justice will not be prejudiced thereby."
See
also
S
v Acheson
1991 (2)
SA 805
(NmHc)
[17]
The Magistrate has, in my view, considered the factors outlined in
s
60(4)
of the CPA, and attached weight to the first factor that,
should he be released on bail, he will endanger the safety of the
public
which also includes his wife. I am, in considering this
application and as enjoined by
s 60(2A)
, mindful of the
recommendation by Dr Christopher, Psychiatric Registrar, that the
appellant is to attend a 30-day observation in
terms of
ss 77
,
78
and
79
of the CPA.
[18]
The remarks by Hefer J in
S
v Barber
1979 (4) SA
218
(D &CLO) at 220 E - Fare apposite:
"It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a
substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly, although this Court may have a different view, it should
not substitute its own view for that of the magistrate because
that would be an unfair interference with the magistrate's exercise
of his
discretion. I think it should be stressed that,
no matter what this Court's own views are, the real question is
whether it can be
said that the magistrate who had the discretion to
grant bail exercised that discretion
wrongly."
[19]
I am not persuaded that the Magistrate was wrong in his refusal of
the appellant's application to be admitted
to bail. He poses a danger
to his wife and other members of society. He is standing trial for
murder and must still be subjected
to the 30-day mental observation.
There was also a stage, particularly when he demanded to attend his
own son's funeral that the
South African Police Services had
indicated that they were unable to guarantee his safety because the
community was incensed. Those
reasons, cumulatively considered by the
Magistrate during the bail application constituted, in my view,
cogent reasons for the
refusal.
The
appeal cannot succeed and stands to be dismissed.
[20]
Resultantly, I make the following order:
1.
The appeal is dismissed.
2.
A copy of this judgment must be forwarded to the appellant at
Correctional
Services, Van Rhynsdorp, by the Registrar of this Court.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Appellant:
In person
For
the Respondent:
Adv. Q Hollander
Instructed
by:
The Office of the DPP
[1]
Section 65(1)(a)
stipulates: "An accused who considers himself
aggrieved by the refusal by a lower court to admit him to bail or by
the imposition
by such court of a condition of bail, including a
condition relating to the amount of bail money and including an
amendment or
supplementation of a condition of bail, may appeal
against such refusal or the imposition of such condition to the
superior court
having jurisdiction or to any judge of that court if
the court is not then sitting."