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[2019] ZAFSHC 9
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Sesing v S (A11/2019) [2019] ZAFSHC 9 (25 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A11/2019
In
the matter between:
MOLEFO
AUBREY
SESING
Applicant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
18 & 25 JANUARY 2019
DELIVERED ON:
25 JANUARY 2019
INTRODUCTION
[1]
Appellant, a 34-year old South African male, was arrested on 2
November 2017. He, together with his six co-accused,
unsuccessfully
applied for bail. On 28 March 2018 their bail
applications were dismissed by magistrate LM Bothma of Botshabelo.
[2]
Being dissatisfied with the outcome of the bail application,
appellant filed a notice of appeal on 15 January 2019, 10 months
after the dismissal of the bail application. The matter was
heard by me on 18 January 2019, but postponed to today as the
magistrate’s reasons in terms of s 65(3) of the Criminal
Procedure Act, 51 of 1977 (“the CPA”) were not obtained.
These have now been received.
[3]
It is common cause that appellant and his co-accused face a serious
charge, to wit robbery with aggravating circumstances read
with
s 51
of the
Criminal Law Amendment Act, 105 of 1997
in that R100 000 was
taken with force from the person in charge of a cash loan business
whilst he was also threatened and pointed
with firearms.
Several people were involved in the robbery and it is alleged that
appellant provided transport to two of
the robbers to and from the
crime scene. R10 000 was found in the possession of his
girlfriend on the day of his arrest
which coincided with the date of
the robbery. The prescribed minimum sentence for such an offence is
15 years’ imprisonment.
The offence falls within the ambit of
schedule 6 of the CPA and therefore exceptional circumstances had to
be proven by appellant
why he was entitled to be released on bail.
THE
ISSUES
[4]
The grounds of appeal can be summarised as follows,
i.e.
that
the court
a quo
erred in
4.1 finding that
appellant failed to prove exceptional circumstances, bearing in mind
his personal circumstances and the fact that
he voluntarily attended
to the police station when called upon to do so;
4.2 failing to
individually consider the circumstances and factors relevant to
appellant and to paint him with the same brush as
the others;
4.3 relying on
unsubstantiated evidence by the investigating officer;
4.4 not dealing with the
requirements of
s 60(4)
of the CPA.
[5]
I do not intend to canvass all arguments raised by the parties, save
to mention that I have considered these as well as the
judgment of
the court
a quo,
the further reasons and the evidence placed
before it.
THE
JUDGMENT OF THE COURT
A QUO
[6]
The court
a quo
considered the following to be major grounds
why appellant should not be released on bail, to wit
6.1 his personal
circumstances do not qualify as exceptional circumstances;
6.2 some of the accused
were pointed out on identity parades whilst damning video footage
identifying them exists;
6.3 accused 4’s
Mercedes vehicle was positively identified, accused 5 fired a shot
outside the offices where the robbery was
committed and accused 6 and
7 had contact with employees of the cash loan business prior to the
robbery and also threatened employees;
6.4 the possibility of
evading trial is real, especially where there are several accused,
causing the remaining accused to put the
blame on those that
absconded;
6.5 accused 2, 3, 4 and 5
have previous convictions and some even committed crimes in the past
when released on bail;
6.6 robbery with
aggravating circumstances in Botshabelo is rife;
6.7 as set out in the
additional reasons, appellant used his vehicle to transport some of
the suspects to the crime scene, that
he and accused 7 waited in the
vehicle during the robbery and drove off with two suspects after the
robbery had been committed
– consequently a
prima facie
case exists.
LEGAL
PRINCIPLES
[7]
Section 60(11)(a)
of the CPA stipulates, pertaining to schedule 6
offences, that
“
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;”
[8]
The functions and powers of a court of appeal hearing a bail appeal
is similar to those in an appeal against conviction and
sentence.
Section 65(4)
of the CPA stipulates that the court of appeal shall
not set aside the court
a quo’s
decision unless such
court is satisfied that the decision was wrong. Therefore, in
the case of doubt, the court of appeal
should not interfere.
Hefer J (as he then was) considered the issue as follows in
S v
Barber
1979 (4) SA 218
(D) at 220E – H:
“
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.”
Binns-Ward
AJ (as he then was) stated in
S v Porthen and Others
2004 (2) SACR 242
(C) at para [17] after discussing the aforesaid
dictum of Hefer J that it remains necessary:
“
to
be mindful that a bail appeal, including one affected by the
provisions of
section 60(11)(
a
), goes to the question of
deprivation of personal liberty. In my view, that consideration
is a further factor confirming
that
s 65(4)
of the CPA should be
construed in a manner which does not unduly restrict the ambit of an
appeal court's competence to decide that
the lower court's decision
to refuse bail was ‘wrong’.”
The
court of appeal may only consider the issue of bail afresh where the
court
a quo
misdirected itself materially on the facts or
legal principles. See
S v Mpulampula
2007 (2)
SACR 133
(E) at 136e and
S v Jacobs
2011 (1) SACR 490
(ECP) at para [18]. See also Van der Berg,
Bail, A
Practitioner’s Guide,
3
rd
ed p. 232-4.
[9]
It is important to note that for purposes of
section 60(11)(a)
an
accused shall be detained in custody until dealt with in accordance
with the law, unless he/she after having been given a reasonable
opportunity to do so, satisfies the court that exceptional
circumstances exist which in the interest of justice permit his or
her release. The standard of proof is on a balance of
probabilities. See Van der Berg,
loc cit
p. 97 and
S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2)
SACR 51
(CC) at paras [61], [78] and [79].
[10]
Once exceptional circumstances have been established by a bail
applicant, the enquiry must focus on the balance between the
interest
of the State as set out in
section 60(4)
– (8)A on the one hand
and the appellant’s interest in his personal freedom as set out
in
section 60(9)
on the other. See Du Toit
et al
Commentary on the
Criminal Procedure Act
>, p 9-48B. The
following dictum of Vivier ADCJ in
S v Botha en ‘n Ander
2002(1) SACR 222 (SCA) para [19] is apposite:
“
Gewoonlik,
maar nie noodwendig nie, sal dit (“with reference to
‘exceptional circumstances’”) omstandighede
wees
wat daarop gemik is om die onwaarskynlikheid van die gebeure genoem
in art 60(4)(a) - (e) te bewys. Met betrekking
tot
daardie gebeure, of andersins, moet die aangevoerde omstandighede, in
die konteks van die besondere saak, van so 'n aard wees
dat dit as
buitengewoon aangemerk kan word… Dit is vir die hof om
in elke saak in die besondere omstandighede van
daardie saak 'n
waarde-oordeel te vel of die bewese omstandighede van so 'n aard is
dat dit as buitengewoon aangemerk kan word.”
See
also
S v Scott-Crossley
2007 (2) SACR 470 (SCA) at paras [7] and [12].
Section 60(4)(a)
–
(e) concern the likelihood that the accused, if released, (i) will
endanger the safety of the public or a particular person,
(ii)
will attempt to evade his trial, (iii) will attempt to influence or
intimidate witnesses or to conceal or destroy evidence,
(iv) will
undermine the proper functioning of the criminal justice system or
(v) will disturb the public order or undermine public
peace or
security.
[11]
There is no onus on the State to disprove exceptional
circumstances. The accused must on a balance of probabilities
prove
that the State’s case was non-existent or subject to
serious doubt. See again
Mathebula
,
loc cit
.
In
S v Petersen
2008 (2) SACR 355
(C) at para [55] the
Full Bench concluded as follows on the meaning and interpretation of
exceptional circumstances:
“
Generally speaking
'exceptional' is indicative of something unusual, extraordinary,
remarkable, peculiar or simply different…
This may, of
course, mean different things to different people (exceptional
circumstances), so that allowance should be made for
a certain
measure of flexibility in the judicial approach to the question…
In essence the court will be exercising
a value judgment in
accordance with all the relevant facts and circumstances, and with
reference to all the applicable legal criteria.”
[12]
An accused who alleges innocence and claims that he will ultimately
be acquitted, must prove his future acquittal on a balance
of
probabilities. See
S
v Mathebula
2010 (1) SACR 55
(SCA) at paras [11] – [13]. Where an
accused, confronted with allegations that he has committed a schedule
6 offence,
does not make out a
prima
facie
case
of the prosecution failing, there is no duty on the prosecution to
present evidence in rebuttal. See
S
v Mathebula
,
loc cit
,
para [12] and
S
v Viljoen
,
2002 (2) SACR 550
(SCA) at para [15]
.
[13]
Personal circumstances which are really “commonplace”
cannot constitute exceptional circumstances for purposes
of
section
60(11)(a).
See Du Toit
et al, loc cit
at 9-62 and
S
v Scott-Crossley
,
loc cit
, at para [12].
[14]
It is not the function of the court considering bail to make a
provisional finding of guilt, but to assess the
prima facie
strength of the State case. See
S v Van Wyk
loc
cit
at para [6].
EVALUATION
OF THE APPEAL
[15]
I indicated that I would not venture into a full evaluation of the
arguments, the evidence and the reasons of the court
a quo
.
However I need to point out that the following aspects are important
to substantiate the finding that the bail application
be dismissed.
Appellant’s counsel strenuously argued that the mere fact that
appellant went to the police station when
called upon to do so is
indicative of his innocence. I disagree. It is clear that
the information relied upon by the
investigating officer enabled his
colleague to identify appellant as the driver and owner of the one
get-away car. It would
not be possible to contact appellant
telephonically if he was not positively identified by someone who
personally knew him and
informed SAPS of his identity and contact
details. Appellant admitted that R10 000 was found in the
possession of his
girlfriend. His version in this regard is
improbable. If he received the money to buy material, he would
have been
in possession thereof and not his girlfriend. When he
received the telephone call, he was with her. Obviously, when
he went to the police station, he left the money with her and one may
ask why he did that if he was totally innocent and on his
way to buy
material.
[16]
It cannot be disregarded that the police would not have been aware of
the R10 000 if that was not conveyed to them.
On
appellant’s version the money was obtained from a reliable
person for whom he worked as he was supposed to buy material.
He failed to call the person who had given him the money to testify
on his behalf and also failed to call his girlfriend to corroborate
his version. According to the investigating officer the
appellant took them to his girlfriend’s residence after he
had
made certain admissions.
[17]
It appears from the evidence of the investigating officer that Adv J
Nel, who initially appeared for appellant, suggested to
him that
appellant should become a state witness. However, when he
approached the appellant, he was unwilling to co-operate.
No
cross-examination took place in this regard and this must be accepted
as the truth. The obvious question that arises from
this is why
counsel would make such a suggestion if his client did not know the
other accused and could not offer any meaningful
assistance in
support of the state’s case. The seriousness of the
allegations and the evidence pertaining to previous
convictions by
some of the other accused are relevant factors which have an adverse
effect on appellant’s case. The
version that he was the
driver of the one get-away car place his circumstances within the
ambit of the others and the submission
that he should have been dealt
with differently is rejected.
[18]
I am satisfied that the court
a quo
was correct in finding
that a
prima facie
case exists. I cannot find that the
decision to dismiss the bail application was wrong, or that any
misdirections occurred, and
therefore, in accordance with
s 65(4)
, I
shall not set aside that decision.
ORDER
[19]
Consequently, the appellant’s appeal is dismissed.
_______________
J.
P. DAFFUE, J
On
behalf of appellant: Adv RJ Nkhahle
Instructed
by:
Heyneke
Attorneys
Bloemfontein
On
behalf of respondent: Adv R Hoffman
Instructed
by:
Director
of Public Prosecutions
Bloemfontein