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[2020] ZAGPPHC 5
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Basadien v S (BA03/19; A397/2019) [2020] ZAGPPHC 5 (15 January 2020)
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IN
THE HIGH COURT OF SOUTH AFRICA,
[GAUTENG
DIVISION, PRETORIA]
CASE No. A 397/2019
APPEAL no: BA 03/19
15/1/2020
In
the matter between:
FANHEE
BASADIEN
APPELLANT
And
THE
STATE
RESPONDENT
Judgment
Mavundla
J.
[1]
This is an appeal against the decision of the Magistrate Mr Kruger in
the Magistrate
Court district of Tshwane East held in Cullinan on the
29 July 2019 refusing to admit the appellant to bail pending the
finalization
of his case.
[2]
The appeal is noted on the basis that the magistrate erred:
2.1
in finding that exceptional
circumstances in terms of section 60(11)(a) of Act 51 of 1977 were
not established notwithstanding that:
2.1.1
no evidence was presented which could
indicate a likelihood that the appellant if released on bail would
attempt to evade standing
trial;
2.1.2
No evidence was presented which could
indicate a likelihood that the appellant if released on bail would
interfere with witnesses
or evidence;
2.1.3 no
evidence was presented which could indicate a likelihood that the
appellant if released on bail
would commit schedule 1 offence or
would endanger the public;
2.2
in
failing to hold that the aforesaid circumstances cumulatively
amounted to exceptional circumstances;
2.3
in
failing not to analyse the totality of evidence in relation to
factors outlined in section 60(4)(a) -(e) of Act 51 of 1977;
2.4
in failing to consider granting bail
coupled with appropriate conditions;
2.5
in failing to attach any sufficient
weight to the appellant's previous conduct while on bail, namely that
he never failed to comply
with his to obligation to attend court;
2.6
by misdirecting himself in
overemphasising the strength of the State's case;
2.7
in failing to attach weight to the
appellant's evidence under oath that his willing to relocate to an
alternative address provided
for at [….] until the matter is
finalized;
2.8
in failing to attach weight to the
appellant's evidence under oath that he is a South African citizen
without a valid passport as
it had expired and that he had handed it
over to the South African Police;
2.9
in overlooking the fact that the
investigating office Mr Segone testified that the offence happened on
29 June 2019 while the charge
sheet indicated that the offence
happened on 25 June 2019 which is a very material mistake and he
placed much emphasis on such
evidence;
2.10
by incorrectly refusing bail.
[3]
The appellant is being charged with 3 (three) counts of rape
[1]
and one count of intimidation. The rape charges fall within the
purview of
s 60
(11)(a) of the
Criminal Procedure Act 51 of 1977
,
[2]
which enjoins the presiding officer to keep the appellant in custody
unless the appellant/ accused satisfy him that there exists
exceptional circumstances which in the interest of justice permit
that he be released on bail.
[4]
The
onus
rested
on the appellant to prove the existence of exceptional circumstances
which permit that in the interest of justice he be admitted
to bail.
Such
onus
had
to be proven on a balance of probabilities.
[3]
[5]
The
appellant deposed to an affidavit in his bail application. His level
of education is grade ten. He disclosed the three aforesaid
addresses. He has two wives, one in South Africa with whom he has
five children and a second wife who resides in Senegal with whom
he
has two children. His income is derived from selling goods which he
buys in China. He last travelled to Sengal in 2015. He last
travelled
to China in 2018.His passport expired on 28 June 2019. He disclosed
his previous convicts; one of theft in 2000 where
he was sentenced to
6 (six) months imprisonment wholly suspended for a period 5 years;
and unlawful possession of firearm in 2002
in respect of which he was
sentenced to 24 (twenty-four) months imprisonment. He indicated that
he intended to plead not guilty
to all the counts. He did not deal
with the merits of the case. He further stated that he can afford
posting an amount of R1500.
00 towards bail.
[6]
The
State in opposing the bail application, relied on the evidence of the
investigating officer constable Segone. According to the
instigating
officer, the complainant was invited to the appellant's home by his
wife who is the complainant's aunt. The rapes and
the intimidation
offences were allegedly committed at the appellant's home within a
space of less than twenty-four hours. After
the complainant had left
the appellant's home, she reported her ordeal to her mother, who is
the sister to the appellant's wife.
A criminal case against the
appellant was immediately laid with the police. When the appellant
was arrested, a firearm was found
underneath a pillow on his bed. The
appellant's expired passport was handed in. His addresses in Cape
Town, [….] and [….]
were verified. The said facts were
adduced through the evidence of the investigating officer.
[7]
The
magistrate in refusing the appellant's bail had regard to the
following:
7.1
that
the State's case is strong, regard being had to the fact that there
are three counts of rape and the possible sentence that
might be
imposed;
7.2
the appellant at the time of arrest was
uncooperative to the investigating officer;
7.3
was in possession of a firearm at the
time of arrest;
7.4
had a previous conviction of unlawful
possession of a firearm;
7.5
the appellant threatened the complainant
after the commission of the crime;
7.6
there
was a question mark regarding the appellant's permanency and
trustworthiness,
7.6
both
the complainant and the appellant's wife are scared of him;
7.7
appellant
mislead the court that he last went to Senegal in 2015 whereas the
passport reveals that he went there three times in
2017.
[8]
It
was submitted on behalf of the appellant that for purposes of
establishing exceptional circumstances, he had proven the following
(a) the degree of permanency in the RSA; (b) the family ties within
the RSA; (c) less to interfere with witnesses and police
investigations,
(d} regardless of having a wife and children outside
the borders of RSA, but a less likelihood to abscond especially in
the light
that his current travelling documents has expired; {e) he
has proven (i) existence of a positive and confirmed addresses by the
investigating officer; (ii) less likelihood that the interest of
justice will be compromised were he to be released on bail.
[9]
It
was further submitted that the State did not disprove the above
mentioned factors established by the appellant. The magistrate
was
duty bound to weigh the interest of justice that the appellant must
be released on bail; in this regard relying on the authority
of
5
v D
2012 (full citation not
provided). It is further submitted that the test the magistrate might
have used in determination of bail
might be incorrect and that had he
used the correct test he would have admitted the appellant to bail;
in this regard relying in
the matter of
S
v Rudolph.
[4]
[10]
It
is correct that when deciding the issue whether an accused should be
released on bail or not the court should have regard not
only to the
interest of justice but also the persona circumstances of the accused
person, weighing the interest of justice against
the right of the
accused to his personal freedom and in particular the prejudice he or
she is likely to suffer if detained in custody;
vide
s60(9)
read with
s60(4).
In this
regard the period of the accused person in custody since the arrest,
the possible duration of the trial while in custody.
and the possible
financial loss the person might suffer while held in custody, his
health., etc. The list is inexhustive.
[11]
It was further submitted that the magistrate only concentrated on the
strength of the State's
case but left out other issues, such as that
the
prima facie
evidence upon
which the strength of the State's case is premised, will still be
tested during the trial. The appellant must be seen
as innocent until
proven guilty. There was no evidence that there is a likelihood that
the appellant would evade trial and or interfere
with the State
witnesses. The court should have learned in favour of granting bail,
as held in
S v
Branco
[5]
,
The
magistrate should have been
guided
by the decision in
5
v Anderson
[6]
;
S v Hudson
[7]
;
Baily and Others v The State
[8]
.
[12]
It
was further submitted that the magistrate erred in exercising his
discretionary power in the wide sense of discretion. The appellate
court is in terms of
s65(4)
of the CPA enjoined to interfere with the
lower court's decision of a bail application if it is satisfied that
the lower court's
decision was wrong.
In
casu
the magistrate found that the
appellant did not discharge the
onus
resting on him; the court on appeal
should assess the evidence that was placed before the magistrate and
come to the conclusion
that the appellant did in fact discharge the
onus
and
substitute its own decision and admit the appellant on bail.
[13]
The
appellant chose to exercise his right of silence, as he is entitled
to, and placed no evidence to refute the State's case regarding
the
commission of the alleged offences. He further did not place
evidence to refute the State's version that he intimidated
the
complainant with a firearm. He did not refute the evidence that both
the complainant and his wife were afraid of him. This
invariably
leaves the contention of the State, that it has a strong case against
the appellant
[9]
and on inferential basis that he might cause the complainant harm
once released on bail, undermining the proper functioning of
the
criminal system. As held in
S v
Rudolph
[10]
in those circumstances s60(4)(a) and
(d) of the Act prohibits his release from detention. It is apposite
to quote all of s60(4):
'The interest 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].' In this
Rudolph
[11]
case the Supreme Court of Appeal
held that: '[16] When all the allegations are weighed up at least two
of the grounds listed ln
s60(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.'
[14]
In this matter, the State's case was premised on the
viva
voce
evidence of
the investigating officer constable Segone, whose evidence was tested
under cross examination. The appellant chose to
rely on his
affidavit, and as such his evidence was not open to cross examination
and not tested. But
besides, there was no defence proffered. Accordingly, where the
onus
rest on the
appellant in a bail application, his untested evidence is not
sufficiently persuasive to off- set the strength of the
State's case
and prove on a balance of probability that he will be acquitted on
trial. As held in
S
v Mathebula
[12]
until an
applicant in a bail application has set up a
prima
facie
case of
prosecution failing in proving his guilt, the State was not obliged
to rebut his evidence to that effect. In my view, the
Mathebula
decision
(supra)
is dispositive
of the submissions made on behalf of the appellant that there was no
evidence lead that there was a likelihood of
the appellant not
standing trial, interfering with the witnesses, and that the
magistrate erred in finding that there were no exceptional
circumstances.
[15]
The personal circumstances of the appellant were placed on record
through his affidavit;
vide
paragraph [5]
supra.
He
proposed to post an amount of R1500. 00. His personal circumstances
are not extraordinary but the general circumstances in bail
application. He is facing serious counts, if found guilty he risks a
long imprisonment terms. He also has a wife in Senegal although
his
passport has expired. The magistrate was aware of all these factors.
The magistrate concluded that the appellant was a flight
risk. He
also accepted the evidence of the investigating officer, and
concluded that the appellant was a dangerous person. He concluded
that the appellant did not satisfy him that there were exceptional
circumstances warranting that he be admitted on bail.
[16]
Indeed
the result, I am unable to find that the magistrate was in any way
wrong in finding that the appellant had not proven that
there were
exceptional circumstances in this case.
[17]
Accordingly
the appeal is dismissed.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
: 09/01/2020
DATE
OF JUDGMENT : 15/01/2020
APPELLANT'S
'S ADV : ADV MAHAPA THIPE
INSTRUCTED
BY
: KABINDE ATTORNEYS.
RESPONDENT'S
ATT : ADV MPHAHLELE
INSTRUCTED
BY
: DIRECTOR OF PUBLIC PROSECUTION PRETORIA
[1]
in contravention of s3 of Sexual Offences Related Matters Amendment
Act 32 of 2007 read with. inter alia, sections 1, 56(1).
57, 58 59.
60 and 61 of the Sexual Offences Related Matters Amendment Act
32
of 2007, read with
section 92(2).
94
.
256
and
28
1
of the
Criminal Procedure Act 51 of 1977
and the provisions of
s51(2)
and
Schedule 2 of the Crim in al Law Amendment Act 38 of Act 38
of'.2007.
[2]
Schedule 6 of the Criminal Procedure Second Amendment Act 85 of
1997, which amended s 60 (11) of the Criminal Procedure Act 51
of
1977 (hereinafter the Act ' ) provide s as follows:
Section 60(11) as
amended reads as follows:
'Notwithstanding any provision of this Act, where an accused is
charged with an 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. un less 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 pcm1it his or her release."
[3]
S v Jonas 1998 (2) S/\CR 677 at 678h- I and 679g-h. S v Schietekat
1999(1) SACR 100 h
[4]
2010(1) SAC R 262 (SCA).
[5]
2002 (1) SACR 531
at page 533.
[6]
1991 (1) SACR 525
CJ at 5278 -G.
[7]
1996 (1) SAC R 431
(W) at 434 AD.
[8]
[2013] ZAKZ 72 at para graph 29.
[9]
Vide K v S
2003 [1] ALL SA 551 SCA at 555 para (15)
[10]
[2010(1) SACR 262 (SCA) at 267e-h.
[11]
Supra
at2 68a-h.
[12]
2010 (1) SACR 55
(SCA) at p59 b-g.