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[2021] ZAECBHC 40
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Tede and Another v S (CA&R 45/2021) [2021] ZAECBHC 40 (24 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO: CA&R 45/2021
In
the matter between:
APOSTILE
LONWABO TEDE
First Appellant
VUYOLWETHU
NAMBA
Second Appellant
and
THE
STATE
Respondent
BAIL APPEAL
JUDGMENT
STRETCH
J:
[1]
The
appellants have been charged with 15 counts involving the schedule 6
offences of rape and trafficking in persons for exploitation
and
sexual purposes. It is alleged that these offences took place over a
period of some 16 years.
[2]
The
appellants were arrested on 13 November 2021. On 25 November 2021
they brought a joint substantive bail application on affidavit,
which
was opposed by way of affidavit and oral evidence on oath. On
30 November 2021, the Zwelitsha magistrate (in a 20-
page fully
reasoned judgment), refused bail. At the time that bail was refused,
the State had sourced affidavits from at least
seven female
complainants (between the ages of 16 and 22), and two males who were
aged 18 and 19 at the time of the alleged commission
of the offences.
[3]
The
appellants are appealing this judgment, averring in a nutshell that
the magistrate erred in finding that:
a.
mere
undertakings to refrain from performing certain acts if released on
bail were insufficient;
b.
the
first appellant posed a threat to the witnesses, and there existed a
likelihood that he could influence or harm them, because
he had said
this much to warrant officer Ndebele who had escorted him to his
first court appearance;
c.
there
was a likelihood that the second appellant would evade her trial; and
also,
d.
that
the magistrate had erred in condoning arrests first and
investigations later.
[4]
The
offences with which the appellants have been charged fall within the
ambit of schedule 6. This means that any bail application
must be
approached in terms of s 60(11) of the Criminal Procedure Act 51 of
1977 (“the CPA”). The sub-section makes
it peremptory for
the court to order the continued detention of the accused until dealt
with according to law, unless the accused
adduces evidence which
satisfies the court that exceptional circumstances exist, which, in
the interests of justice, permit his
or her release. In a nutshell,
the default position for the schedule 6 accused is no bail.
Differently put, and as succinctly
stated in
S
v Schietekat
1999 2 SACR 51
CC, the evaluation of such cases has the predetermined
starting point that detention is the norm. Paragraph 64 of that
judgment
reads as follows:
‘
Section
60(11) 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 the “exceptional circumstances”
are shown by
the accused to exist. The exercise is one which departs from the
constitutional standard set by section 35(1)(f) of
the Constitution.
Its effect is to add weight to the scales against the liberty
interest of the accused and to render bail more
difficult to obtain
than it would have been if the ordinary constitutional test of the
“interests of justice” were
to be applied.’
[5]
The
exceptional circumstances must not be those which are found in an
ordinary bail application. They should pertain peculiarly
to an
accused person’s specific application (see
S
v Petersen
2008 2 SACR 355
C). Differently put, personal circumstances which are
essentially commonplace, cannot constitute exceptional circumstances
for
purposes of the section (see
S
v Scott-Crossley
2007 2 SACR 470
SCA). Examples which immediately come to mind where
courts have, in the frames of reference of particular sets of facts,
accepted
circumstances to have been exceptional, are the urgent
necessity for serious medical intervention, or the existence of a
cast-iron
alibi strongly supportive of the accused’s innocence.
In
S
v Mabena
2007 All SA 137
SCA, Nugent JA however stated that graver offences
listed in schedules 5 and 6 are naturally subject to a regime which
is even
more stringent than would otherwise be.
[6]
I
must now apply these entrenched principles to the matter before me,
taking into account that s 65(4) of the CPA dictates in peremptory
language that I shall not set aside the decision against which the
appeal is brought, unless I am satisfied that the decision itself
(and not necessarily the
ratio
underlying the decision) was wrong, in which case I am at liberty to
substitute the decision. I have given thorough consideration
to the
magistrate’s judgment and the criticisms levelled against it.
The magistrate, to my mind, delivered a particularly
detailed and
careful judgment. Indeed, if any errors were committed, they tended
to be in favour of the appellants. By way of example,
I am of the
view that the magistrate was generous in concluding that the point of
departure in a bail application where the onus
is on the accused to
show the existence of exceptional circumstances justifying his
release, still has at the heart of it, the
interests of justice test.
I say this, because it is evident that the Constitutional Court in
Schietekat
dealt
with that particular s 60(11) applicant in a far harsher manner.
[7]
The
main criticism of the magistrate’s judgment,
viz,
his finding that the mere undertakings of the accused on paper to
refrain from conduct prohibited by their bail conditions, was
insufficient to discharge the onus which they bore, seeks to rely to
my mind, on a misinterpretation of what the judgment essentially
seeks to convey. I say this because it goes without saying that the
interests of justice (in an ordinary bail application in terms
of s
60(4)) automatically do not permit the release of an accused where
one or more of the following is affected:
a.
public
safety;
b.
whether
the accused will stand trial;
c.
the
safety and availability of current and potential state witnesses and
other evidentiary material;
d.
the
proper functioning of the justice system; and
e.
the
protection of public order, peace and security.
[8]
In
my view the magistrate correctly identified the crisp issues in this
matter, at paragraph 10 of his judgment, where he commented
as
follows:
‘
The
State’s, and in fact this Court’s main concerns after
considering the evidence before me, lies in the safety of
the state
witnesses, potential witnesses and the public, as well as in the
likelihood that the applicants will not stand trial.’
[9]
The
magistrate concluded that when the onus lies with the accused, the
correct way to discharge it is to provide facts or factors
which
would lead the court to arrive independently at a sought after
conclusion. There is nothing wrong with this reasoning. The
magistrate thereafter quite properly made reference to the first
appellant’s stated defence, being that all these complaints
are
fabrications sprouting from a very recent vendetta against his
church, held by a group of persons who had broken away from
his
congregation, and which group had made its best endeavours to
influence persons to invent false information about him. To my
mind,
having due regard to where the onus lies, such a bald statement is
wholly insufficient for the discharge thereof. If
the
appellants wanted the magistrate to attach some weight to this
defence, they were surely empowered by direct and indirect means
and
evidence at their fingertips to provide at least a modicum of support
for these contentions. Yet they elected not to do so.
Nor did they
make themselves available to be questioned about this alleged recent
vendetta.
[10]
As for
the second appellant, she unfortunately elected simply to piggy-back
on the first appellant’s case, without even touching
on the
onus which she bore to provide credible information as to her assets,
a fixed place of address, family ties and so forth.
Indeed, she
hardly produced anything at all on which the magistrate could safely
rely to distinguish her from the first appellant.
[11]
On
these two crucial aspects I am inclined to agree with what is stated
in the respondent’s heads of argument. In dealing
with the
ground relating to interference with state witnesses, the court held
that both the appellants are familiar with the witnesses
and that the
first appellant made threats in the presence of a police officer. In
my view the magistrate was quite justified in
expressing concern
about what the police officer had said in his affidavit, as opposed
to the sketchy contents of the first appellant’s
affidavit,
particularly in the context of serious complaints made on oath by
several soft, gullible and vulnerable targets. On
this particular
aspect the officer’s affidavit reads as follows:
‘…
Lonwabo
Tede informed me without being asked that he knows the people who are
after/behind his arrest. He even know why they want
him behind bars
and he will deal with them as soon as he gets bail because they are
playing with fire. They do not know who they
are dealing with and
also, they do not know what he is capable of.’
[12]
This
evidence does not stand alone. It is corroborated to some extent by
the anger and hostility openly expressed by the first appellant
in
his affidavits in support of the bail application. Furthermore, the
magistrate was clearly (and correctly so) alive to the common
cause
fact that the first appellant is a particularly powerful and
influential figure. He is both an employer and a spiritual leader
in
a compound of which the complainants formed a part. It is also not in
dispute that the second appellant is but one of his devoted
disciples
who found herself indebted to the first appellant for having taken
her under his wing when she had nowhere else to go.
[13]
To sum
up, it is my view that neither of the appellants have touched on
discharging the onus that exceptional circumstances exist,
which
would elevate their position to one which would comfortably fit into
“liberty in the interests of justice” category.
It has
been contended on behalf of the first appellant that exceptional
circumstances exist in the possibility that his fixed property
may be
vandalised while he is being detained, and that the detention may
well be lengthy because DNA testing takes time.
[14]
In my
view there is no substance in these submissions, and they amount to
speculation. There is in any event no evidence that the
compound has
not or will not be cared for in the first appellant’s absence.
On the contrary, it appears that he has strong
support from his
spouse and his employees.
[15]
The
appellants in argument, have referred to the judgment of Rabie J in
the Gauteng division of the high court in
S
v Fourie
(Pretoria
case no. A107/2020) handed down on 8 June 2020. In that matter the
court dealt at length with the interpretation of exceptional
circumstances and referred extensively to relevant case law, in
support of a finding that exceptional circumstances existed. I
have
read the case thoroughly. I am satisfied that the facts in that case
are such that it serves to be distinguished from the
matter before
me. For one, the magistrate whose decision to decline bail was
overturned on appeal in
Fourie,
had
been presented with several affidavits, by and large supporting the
appellant’s case, instead of making out a strong case
against
him. Indeed, an affidavit deposed to by one ‘De Koker’
turned out to have shown that the State’s case
was not
particularly strong at all. This is not so in the matter before me,
where the magistrate who declined bail was referred
to at least nine
affidavits relying on the same
modus
operandi
in
support of no less than 15 charges of rape and trafficking in persons
for exploitation and sexual purposes.
[16]
The
magistrate in the court
a
quo
,
who is regularly steeped in the atmosphere of applications of this
nature and the turnaround time of the court, was of the view
that it
was likely that the case would be dealt with before the expiration of
a year. It goes without saying that accused persons
who generally
find themselves in intolerable circumstances where the commencement
and the finalisation of their trials are nevertheless
being unduly
protracted, are not barred from seeking fresh forms of redress, if so
advised.
[17]
I am
accordingly not satisfied that the magistrate wrongly exercised his
discretion, and that the decision to refuse bail was wrong.
In the
result the appeals cannot succeed. I make the following order:
The
appeals of both appellants are dismissed.
___________________
I.T.
STRETCH
JUDGE
OF THE HIGH COURT, BHISHO
Date
heard:
24
December 2021
Judgment
delivered:
24 December 2021
Counsel
for the appellants: Mr Z.M. Maseti
Instructed
by:
Ronny Lesele Attorneys, King William’s Town
Counsel
for the State:
Mr N Ntelwa
National
Prosecution Authority, Bhisho