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[2020] ZAGPPHC 129
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Mahlangu v S (A23/2020) [2020] ZAGPPHC 129 (21 February 2020)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
Case No: A23/2020
In the matter
between:
CLEMENT
MAHLANGU
Appellant
and
THE
STATE
Respondent
JUDGMENT
VAN OLST, AJ
[1]
The Appellant who is presently incarcerated brought an
appeal application for the granting of b ll. pending his trial In the
District
Court for the district of Tshwane North held at Pretoria
North.
[2] The Appellant is
charged with two counts of contravening the provisions of Section 3
read with sections 1, 2, 50, 56(1), 56A,
57, 58, 59, 60 and 61 of the
Criminal Law (Sexual Offences and Related Matters} Amendment Act 32
of
1
\
,
2007 as amended. Further read with sections 94, 256 and
261 of the Criminal Procedures Act 51 of 1997. Further read with
section
51(2)(b) and Schedule 2 of the
Criminal Law Amendment Act 105
of 1997
as amended. Further read with
Section 120
of the
Children's
Act, 38 of 2005
in that on or about 23, June 2019 and at or near
Soshanguve in the district of Tshwane North the appellant unlawfully
and intentionally
committed an act of sexual penetration with the
complainants namely [In respect of [count 1] a certain […] (28
years old)
by Inserting his penis inside her vagina without her
consent and [in respect of count 2] at the appellant on or about the
2019
and at or near Soshanguve in the district of Tshwane North the
appellant unlawfully and intentionally committed an act of sexual
penetration. with the complainant by inserting his penis Inside her
vagina without the consent of the said complainant.
[3] The Appellants,
in the affidavit In support of bail application [signed on 1 July
2019] indicated that he intends pleading not
guilty to the charges
against him [pages 109 to 115].
I
[4] The Appellant launched a bail application before
Magistrate Wessels that commenced on the 11 July 2019, Judgment
delivered on
19 August 2019 and bail was refused on19 August 2019.
[5] The Appellant
bears the
onus
to satisfy the court that exceptional
circumstances exist, which the interests of justice, permits his
release on bail.
[6]
During the bail application in the district court the State relied on
the evidence of Mr Chauke the Investigating Officer. The
prosecutor
first provided the Magistrate with a statement by Mr Chauke and also
called Mr Chauke to testify in court. Mr Chauke
referred the district
Court to the list of offences committed by the Appellant according to
the records at his disposal. It appeared
that the Appellant is out on
bail pertaining to two pending trials in respect of previous rape
charges. Numerous other offences
under investigation were listed as
well as several rape charges which were withdrawn. Mr Chauke further
indicated that the first
complainant approached him Chauke to have
the charges withdrawn against the Appellant. The first complainant
alleged that if the
charge is not withdrawn, attending court
proceedings will Interfere With her studies as well as employment
duties and commitments.
The first complainant later on·again
approached Mr Chauke and indicated that she was approached by the
second complainant
to withdraw the charges against the Appellant and
indicated that the Appellant is in the process of selling one of his
vehicles
and the first complainant will be paid a certain amount from
the sale of this vehicle. It does not appear from the record of
proceedings
that the first complainant did in fact formally withdraw
the charges against the Appellant. It does not appear from the record
of proceedings during the bail application that the second
complainant had in fact withdrawn the charges against the appellant.
According to Mr Chauke both complainants are proceeding to trial with
the charges against the appellant.
[7] Mr
Matshona, attorneys, on behalf of the Appellant presented the
District Court with a statement by the Appellant regarding
his bail
application. Mr Matshona commenced to present the evidence of the
second complainant on behalf of the Appellant. The second
complainant
commenced to testify·that she was the girlfriend of the
Appellant at the time of the hearing of the bail application.
The·testimony was interrupted by Magistrate Wessels when it
was ascertained that the second complainant is a State witness.
There
was as a discussion of whether Mr Matshona should be allowed to
proceed presenting by evidence of the second complainant
or not. Mr
Matshona did not proceed with the evidence by the second complainant.
Mr Matshona did not call the Appellant to testify
at the bail
application.
[8] It was
furthermore recorded that the charges of complainants1 and 2 have
been defined as Schedule 6 offences.
[9] On 13 December
2019 the Appellant's legal representative proceed with a Notice of
Appeal in terms of Section 65 of the Criminal
Procedure Act, Act 51
of 1977 and seeks an order that the Appellant be released on bail
pending the trial of the two aforesaid
complainants. The Appellant
stated the following grounds and reasons why the Appellant is
entitled to appeal against the refusal
of the district court to grant
bail in that the magistrate erred in finding that:
[a] It will not be in the best Interest of Justice to release the
Appellant on bail;
[b] The Appellant failed to establish the presence of exceptional
circumstances;
[c] In not finding that the Appellant succeeded In establishing that
it is in the interest of justice to be released on bail and
that
exceptional circumstances have been established;
[d] In not finding that the following factors are indeed exceptional
circumstances
[i]
the cumulative effect of the Appellant's personal circumstances
[ii]
that the Appellant is financially supporting three children and his
elderly mother
[iii]
that the Appellant provide in the medical need of his elderly mother;
[iv]
that the Appellant is In need of an urgent operation for his injured
leg;
[v]
that the Appellant is involved in divorce proceedings which will be
extremely difficult to contest if not released on bail;
[vi]
that the Appellant has no previous convictions of any nature
including of a violent nature.
[e] In over emphasizing the previous arrests of the Appellant despite
the clear evidence that all outstanding charges were withdrawn
against the Appellant for valid and acceptable reasons.
[f] Moving on the the premise that the Appellant is a "serial
rapist'' whilst his previous cases had been withdrawn against
him
after due consideration by a prosecutor and In light of the fact that
the Appellant has never been convicted of an offence
of a sexual
nature previously.
[g] In not taking into account that the second complainant who had
withdrawn the charge, testified under oath that the Appellant
is her
boyfriend.
[h] In merely dismissing the lack of medical evidence Indicative of
penetration In the Form J88.
[i] Not considering at all any appropriate bail condition to
alleviate any fear regarding intimidation of state witnesses.
[10]
Mr Pistorius appeared on behalf
of
the Appellant and from the
outset argued
in limine
that the documentation in the
application for appeal against the refusal of bail with specific
reference to the statement by Magistrate
Wessels are inadmissible and
should not be regarded and taken into account. He
inter alia
also
pointed out that the case law referred to by Magisrate Wessels is
incorrect.
[11] From the outset
I shall first deal with the point
in limine
raised·by
Mr Pistorius.
[a] It Is clear from the relevant case law read with Section 65(2) of
the Criminal Procedure Act [CPA], 51·1997; that:
"(2) An appeal shall not lie In respect of new facts which arise
or are discovered after the decision against which the appeal
is
brought, unless such new facts are first placed before the magistrate
or regional magistrate against whose decision the appeal
is brought
and such magistrate or regional magistrate gives a decision against
the accused on such new facts.". .
[b] I have therefore not taken into account the statement by
Magistrate Wessels nor any other documentation in the file contents
regarding the issues raised in Magistrate Wessels' statement.
[12] Mr Pistorius
addressed the court on the reasons advanced in the application for
leave against the bail and over and above pointed
out that Magistrate
Wessels specifically erred by interfering of evidence by e
second complainant on behalf of the Appellant.
[13]
Mr Pistorius also Indicated that Magistrate Wessels was subjective by
referring to Mr Matshona [attomey on behalf of the appellant
In the
bail application) to possibly reporting the matter to the Law Society
[Legal Practice Council] should Mr Matshona persist
in calling the
second complainant as a witness on behalf of the Appellant and by
questioning the investigating officer if the Appellant
could be
profiled as a serial rapist. Mr Pistorius indicated that Magsitate
Wessels elicited evidence from Mr Chauke and, furthermore,
that Mr
Chauke did not have the full information regarding the employment of
the Appellant and how the Appellant made a living.
[14]
Mr Pistorius submitted on behalf of the Appellant that Magistrate
Wessels erred on various issues and as such bail should have
been
granted to the Appellant.
[15]
With reference to pages 13, 14 and 15 of the record of proceedings
[relating to outstanding investigations and charges against
the
Appellant] Mr Pistorius indicated that Mr Chauke obtained the
Information from so-called system profiling and that the Appellant
should have received the benefit of the doubt.
[16] Mr Pistorius
also indicated that taking into account the seriousness of the
offences bail may be granted in the sum of between
R10,000 and
R15,000 but that is something he can discuss with Mr Luyt on behalf
of the Responent
[17] Mr Luyt
appeared on behalf of the Respondent and indicated that:
[a] The Appellant failed to, on a balance of probabilities prove that
he was entitled to bail during the bail application. The
Appellant
relied on a sworn statement and did not testify at the hearing of the
bail application. The Appellant failed to prove
beyond a reasonable
doubt the
onus
the Appellant has to discharge
[b] According to Mr Luyt with regard to pages 42 - 43 of the record
of proceedings In the District Court, It Is clear that the
Appellant
interfered with a witness. The Appellant did not satisfy the required
proof that has to be addressed to the District
Court regarding
Interference of witnesses.
[c] Bail applications are
sui generis
and as such the
magistrate should participate in hearing bail applications.
[d] The Appellant did not provide any evidence that exceptional
circumstances exist to be granted bail pending trial.
[e] There are pending cases against the Appellant.
[f] Magistrate
Wessels did not err by refusing bail In respect of the Appellant
[18] In rebuttal Mr
Pistorius indicated that:
[a] The inquisitorial approach by Magistrate Wessels was subjective.
[b] Magistrate Wessels exceeded the prescribed boundaries.
[c] No Affidavit was placed before the District Court that there was
in fact interference with witnesses by the Appellant.
[d] If the Appellant Is released on bail, he will be re-arrested.
[19] Section 65 of
the CPA is paramount for purposes of appeal and I quote the
following:
"(1)(a) An accused who considers himself aggrieved by the
refusal of a lower court to admit him bail or by the imposition
of
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.
…
(2) An appeal shall not lie in respect of new facts which arise or
are discovered after the decision against which the appeal is
brought, unless such new facts are first placed before the magistrate
or regional magistrate against whose decision the appeal
is brought
and such magistrate or regional magistrate gives a decision against
the accused on such new facts.......
(4) The court or judge hearing the appeal shell net set aside the
decision against which the appeal is brought, unless such 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
opinion
the lower court should have given.".
[20]
An overemphasis of the Appellants’ rights to appeal a decision
of a court
a quo
should not be tipped in favour of the alleged
offenders and an overemphasis of their rights would not be in
accordance with the
legislation governing bail, nor with the
guidelines set by the Constitutional Court in S
v Dlamini, S v
Dlala, S v Joubert, S v Schietekat.
As stated in S
v Dlamini,
the Constitutional Court held:
“Furthermore a bail hearing is unique judicial function. It is
obvious that the peculiar requirements of bail as an interlocutory
and inherently urgent step were kept in mind when the statute was
drafted. Although it is intended to be a formal court procedure,
it
is considerably less formal than a trial. Thus the evidentiary
material proffered need not comply with the strict rules of oral
or
written evidence. Also, although bail, like the trial is essentially
adversarial. The inquisitorial powers of the presiding
officer are
greater. An important point to note here about bail proceedings is so
self-evident that it is often overlooked. It
is that there is a
fundamental difference between the objective of bail proceedings and
that of the trial. In a bail application,
the enquiry is not really
concerned with the question of guilt. That is the task of the trial
court. The court hearing the bail
application is concerned with the
question of possible guilt only to the extent that it may bear on
where the interests of justice
lie in regard to the bail, the focus
at the bail stage is to decide whether the interests of justice
permit the release of the
accused pending trial; and that entails, in
main, protecting the investigation and prosecution of the case
against hindrance”.
[21]
The issue to determine is whether the Appellant has discharged the
onus
which rests on him in terms of Section 60(11)(a) of the
Criminal Procedure Act to be admitted on bail. The question therefore
arises
as to what the exceptional circumstances are and I point out
the following:
[a] In
S v Bruintjies
2003(2) SACR 575 (SCA) at 577f Shongwe
AJA said·
“..what is required is that the court consider all the relevant
factors and determine whether individually or cumulatively
they
warrant a finding that circumstances of an exceptional nature exist
which justify his or her release. What is exceptional
cannot be
defined in isolation from the relevant facts, save to say that
the legislature clearly had in mind circumstances
which remove the
applicant from the ordinary run and which serve at least to mitigate
the serious limitations of freedom which
the legislature has attached
to the commission of a Schedule 6 offence.”
[b] In
S v Rudolph
2010(1) ACR 2152 (SCA) at 266 g-h the court
again stated that the applicant in a schedule 6 bail application
must, on a balance
of probability, demonstrate that “exceptional
circumstances” in his or her case, indeed, do exist and that
they “in
the interests of justice permit his release.” A
balance of liberty of the accused and the interests of society in
denying
the bail, will be resolved in favour of the denial of bail,
unless “exceptional circumstances” are shown by the
accused
to exist.
[c] Section 60(4) of
the CPA provides that
“(4) The interests of justice do not permit the release from
detention of an accused where one or more of the following grounds
are established:
(a)
Where 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 a likelihood that the accused, if he or she is
released on bail, will attempt to evade his or her trial;
or;
(c)
There is the likelihood that the accused, if he or she were released
on bail, will attempt to influence or intimate witnesses
or to
conceal or destroy evidence; or
(d)
Where there is a 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 disturbing the public
order or undermine
the public peace or security.”
[22] I
have considered the record of proceedings in the bail application in
the District Court, as well as the arguments on behalf
of the
Appellant and the Respondent in the proceedings before me.
[a] In view thereof that the Appellant is already on bail in two
previous rape charges against him of which trials are pending,
and,
subsequently committed the offences set out above in respect of which
bail was refused;
[b] Regard having been had that we are dealing with Schedule 6
offences and the fact that it was not proven by the Appellant that
the charges by complainants 1 and 2 In the District Court, Pretoria
North have in fact been withdrawn:
[c] It is clear that the Appellant is not a first offender;
[d] The Appellant failed to discharge the
onus
on him that
there are exceptional circumstances to grant bail in his favour.
I could not find any
exceptional circumstances that which in the interests of justice
permit the appellant's release on bail.
[23] Accordingly I
am not persuaded that the magistrate's decision on 19 August 2019 was
wrong and make the following order:
The appeal is
refused.
_____________________
E VAN OLST
Acting Judge Of The
Gauteng Division, Pretoria
Appeal heard on:
February 2020
Counsel for the
appellant: Mr Pistorius SC
Instructed by: Emile
Viviers Attorneys
Counsel for the
respondent: Mr Luyt
Instructed by: The
Director of Public Prosecutions
Judgment handed down
on: 21 February 2020