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[2019] ZAKZPHC 42
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Soni v S (CC29/2014P) [2019] ZAKZPHC 42 (4 June 2019)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO. CC29/2014P
In
the matter between:
RAJIVEE
SONI
APPELLANT/APPLICANT
and
THE
STATE
RESPONDENT
ORDER
The application for leave to appeal against the refusal to admit the
appellant/applicant to bail pending his appeal to the Supreme
Court
of Appeal in respect of his convictions and sentences is dismissed.
JUDGMENT IN THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE
REFUSAL TO ADMIT THE APPELLANT TO BAIL PENDING APPEAL
HENRIQUES J
Introduction
[1]
The appellant seeks leave to appeal to the full court, KwaZulu-Natal
Division,
Pietermaritzburg, against the refusal to admit him to bail
pending the hearing of his appeal against his convictions and
sentences
imposed.
[2]
A formal
application to be admitted to bail pending appeal was filed on 26
October 2018 simultaneously with the application for
leave to appeal
the convictions imposed. Such application was heard together with the
application for leave to appeal the convictions
and sentences
imposed. It is common cause that a properly completed application for
leave to appeal the sentences imposed was filed
on 21 November 2018
and argument in these applications was heard on 12 December 2018 and
7 March 2019.
[3]
The respondent opposed all the applications although it did not file
answering
affidavits. On 11 April 2019, the appellant was granted
leave to appeal to the Supreme Court of Appeal (SCA) against all the
convictions
and sentences imposed, however, his application to be
admitted to bail pending appeal was dismissed.
[4]
The grounds upon which the appellant sought to be released on bail
pending
appeal were set out in his founding affidavit and supporting
annexures. These were summarised in the judgment delivered on 11
April
2019 at para 89. The legal principles which this court
considered in respect of bail pending appeal were also likewise
considered
and dealt with in the written judgment.
[5]
In the written judgment at paras 101 to 126, the legal principles
applied,
the personal circumstances of the appellant, the facts
considered and the appellant’s prospects of success on appeal
were
all canvassed. As these were both schedule 5 and 6
offences, the appellant bore the onus to show exceptional
circumstances
which in the interests of justice warranted him being
admitted to bail pending appeal in respect of count 1, and in respect
of
counts 2 to 6, whether the interests of justice permitted his
release on bail pending appeal. As the appellant had not discharged
the onus, the application to be admitted to bail pending appeal was
refused.
[6]
The reasons for this conclusion were canvassed extensively in the
written
judgment and summary delivered on 11 April 2019.
Grounds of appeal
[7]
The grounds upon which the appellant seeks leave to appeal against
the
refusal of bail pending appeal are the following:
‘
1.
The Learned Judge erred fundamentally in requiring the Applicant to
prove exceptional
circumstances in the true sense of the word and
failing to follow the dicta in
S
v Dlamini; S v Dladla and others; S v Joubert; S v
Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at page 89c paragraph [76]; S
v Vanqa
2000 (2) SACR 371
(TKHC) at paragraph [14] (h – j) page
376; S v M.G.S. Shange and others unreported (copy attached) at
page 4 to 5
.
2.
The Learned Judge ought to have found that the combination of
ordinary circumstances
referred to in
Section 60(4)(a)
to (e) of the
Criminal Procedure Act 51 of 1977
constitute exceptional
circumstances (
S v
Dlamini and Others supra at page 89c paragraph [76]
).
3.
The Learned Judge was wrong when finding that the main grounds upon
which the
Applicant seeks bail pending appeal is to provide for the
financial wellbeing of his children and to continue operating his
business
(Ruling para [102]).
4.
The Applicant’s grounds in support of his release on bail
extend far beyond
the grounds referred to by the Learned Judge and
include the emotional wellbeing of his children, his duty as primary
caregiver,
his personal liberty, his health (he is presently
incarcerated permanently in the prison hospital) and his close ties
with his
family other than his children.
5.
When considering whether exceptional circumstances had been
established, the
Learned Judge misdirected herself in failing to
appreciate that the following circumstances, in combination, fully
satisfy the
requirements of
Section 60(4)(a)
to (e) at an exceptional
level and permit the Applicant’s release on bail in the
interests of justice:
5.1
The Applicant has no previous convictions or pending cases.
5.2
The Applicant has been industrious from a very young age and has
lived a crime free life
apart from the findings in the present
matter.
5.3
The Applicant has lived in the same house his entire life (apart from
a short period when
he was doing business in Durban) and he now owns
the house. (Compare
S
v M.S.G Shange and others pages 7 to 9
).
5.4
The Applicant is a successful businessman who has established a
business which he will not
readily abandon.
5.5
In addition to his own property and business, the Applicant manages a
commercial property
on behalf of his mother.
5.6
The Applicant’s mother resides next door to him and relies
heavily on the Applicant
as she is of poor health.
5.7
When the Applicant was arrested in the present matter on 12 August
2013, he was required
to establish exceptional circumstances
permitting his release in the interests of justice.
5.8
The Applicant’s release on bail was unopposed as the State
accepted, based on his
exceptionally favourable personal
circumstances together with all other relevant considerations, that
the required exceptional
circumstances had been established.
5.9
The Applicant honoured his bail from 12 August 2013 until the
conclusion of his trial and
never defaulted.
5.10 The
Applicant surrendered his passport which is still in possession of
the police and may remain so
pending the outcome of his appeal.
5.11 The
Applicant has convincingly established that he does not have the
means to flee the country illegally
nor a place where he can take up
residence as a fugitive from justice.
5.12 The
Learned Judge found the existence of substantial and compelling
circumstances when imposing sentence
on the Applicant which
simultaneously amount to exceptional circumstances in the following
respects:
5.12.1 The Applicant is a
first offender.
5.12.2 The Applicant is a
useful member of society.
5.12.3 The Applicant
operates a successful business.
5.12.4 The report in
Exhibit MMMM indicates that the Applicant is the primary caregiver to
his daughter.
5.13 The
Applicant has proved that he is not a danger to society nor to any
particular person if released
on bail.
5.14
Whereas the Applicant has been convicted of murder, his involvement
was non violent and there is no
likelihood whatsoever that he will
reoffend while out on bail
(Section 60(4)(a)).
2.54
cm; text-indent: -1.27cm; line-height: 150%">
5.15 The
circumstances which led to the commission of the offences no longer
exist which renders it safe
to release the Applicant on bail.
5.16 The
Applicant has satisfied all of the requirements of
Section 60(4)(a)
to (e) at an exceptional level which indicates that he has discharged
the onus (see
S v
Dladla and others supra at para [76]
).
5.17 The
psychologist’s reports by Tarryn Blake and Floss Mitchell as
contained in Exhibit MMMM favour
the release of the Applicant.
5.18 The
Affidavit of Kerusha Soni provides compelling reasons to release the
Applicant on bail in the interests
of justice.
5.19 The
Applicant’s poor health as contained in the undisputed medical
report of Dr Sanjay Maharaj
referred to in Exhibit MMMM.
6.
The aforementioned circumstances establish, at an exceptional level,
that the
Applicant will not give up the advantages of his position in
order to evade justice.
7.
The Applicant has reasonable prospects of success on appeal against
both conviction
and sentence.
8.
The Learned Judge was wrong when reasoning that, the emotional impact
of the
trial and subsequent incarceration on the Applicant and his
daughter Sonali, serves as a strong impetus for the possibility of
him absconding pending the finalization of his appeal (Ruling para
[121]).
8.1
The opposite is true in that compelling evidence has been provided
that the Applicant will
never abandon Sonali and his emotional ties
to her serve as an additional guarantee that he will honour his bail.
9.
The Learned Judge was wrong when finding that the personal
circumstances of the
Applicant are comparable with those in
Babuile
and Others v S [2015] ZAGPPHC
as
the Applicant’s personal circumstances are considerably more
compelling (Ruling para [107]).
10.
The Learned Judge did not give sufficient attention to the best
interests of the Applicant’s
minor children in circumstances
where the evidence is clear that the Applicant is the primary
caregiver to Sonali and his release
will be in the best interests of
his children (
S v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC); S v Stokes case no.: CC233/2005 –
previously submitted
).
11.
The Learned Judge erred when failing to acknowledge that the
sentences imposed on counts
2 to 6 do not justify the refusal of bail
for the following reasons:
11.1 In
relation to counts 2 to 6 the Applicant does not have to establish
exceptional circumstances as
these charges do not fall within
Schedule 6 to the
Criminal Procedure Act and
materially different
considerations apply.
11.2
Relatively short terms of imprisonment were imposed on each of counts
2 to 6 which means that the Applicant
will be prejudiced if he is not
granted bail pending appeal (See
S
v Hudson
1996 (1) SACR 431
(W); S v Anderson
1991 (1) SACR 525
(C); S
v Mabapa
2003 (2) SACR 579
(T)
).
11.3 The
combination of the Applicant’s favourable personal
circumstances and the fact that he has
reasonable prospects of
success provide more than sufficient grounds to grant bail in respect
of counts 2 to 6 and further exceptional
circumstances are not
required.
12.
In relation to
count 1
the Learned Judge was wrong when concluding that the Applicant’s
prospects of success are inadequate to exclude the possibility
of
abscondment and that he did not satisfy the test for exceptional
circumstances (Ruling paras [115] [116] [119]). The evidence
in
count 1 is particularly thin in that:
12.1
There is no direct evidence against the Applicant.
12.2 The
evidence of Sugen Naidoo did not implicate the Applicant in the
murder and contributes little or
nothing to his conviction.
12.3 The
evidence of Sugen Naidoo, for what it is worth, is self-contradictory
and patently unsatisfactory
to the point where it is unlikely to pass
scrutiny on appeal.
12.4 The
main witness for the State on count 1 was Sabelo Dlamini, the actual
murderer, who testified that
he did not know the Applicant at all,
did not receive instructions from the Applicant and did not form a
common purpose with the
Applicant.
12.5
Importantly, Sabelo Dlamini testified that his motive or reason for
murdering the deceased was that
his friend, Wiseman Nxumalo, was not
paid by the deceased for grass cutting work which was completely
unrelated to the Applicant.
12.6
Sabelo Dlamini was never informed that the Applicant wanted the
deceased murdered and that this was
the reason for the murder.
12.7 The
highwatermark of the State case on count 1 is the evidence of Dlamini
that, shortly after the murder,
he overheard Brian Treasurer saying
during a phone call to an unknown recipient that “
the
job is done
”.
12.8 The
evidence proves that, shortly after the murder, there were
three
communications
on
Treasurer’s phone within a short space of time, one of which
was to the Applicant’s cell phone and only lasted 12
seconds.
12.9 It
is common cause that the communication to the Applicant’s cell
phone was through voicemail
and that the Applicant did not answer the
call or return the call.
12.10 The duration
of the call to the Applicant’s phone raises a reasonable doubt
whether there would have been
a sufficient time for Treasurer to have
left a message saying “
the
job is done
”.
12.11 The available
evidence did not sufficiently tie the words spoken by Treasurer to
the call to the Applicant’s
phone and permits the reasonable
inference that these words could have been spoken during any of the
other calls made around that
time.
12.12 The State case
is particularly thin in count 1 and permits reasonable inferences
other than the one drawn by the
Learned Judge.
12.13 The Applicant
emphatically denied any common purpose with Treasurer or anyone else
to murder the deceased and
denied that Treasurer left a message on
his phone saying “
the
job is done
”.
12.14 There is every
prospect of success on appeal against the conviction on count 1 and
the weight of the evidence
certainly does not provide an inducement
to the Applicant to abscond in order to avoid the consequences of his
appeal.
13.
The sentence of 25 years imprisonment imposed on count 1 is not so
severe that it will cause
the Applicant to give up all the advantages
of his position and evade the appeal.
14.
It is wrong to adopt the approach that, simply because a lengthy term
of imprisonment has
been imposed, bail pending appeal should be
denied (reference will be made during argument to
S v Priyen Naidu
where bail pending appeal was granted by the Honourable Madam Justice
Moodley where life imprisonment was imposed and this bail
was
honoured until the appeal was finally decided and
S v Stokes
where bail pending appeal was granted by the Honourable Madam Justice
Steyn where an effective 8 years imprisonment was imposed
and the
bail is presently being honoured. Copies of the relevant orders
will be provided).
15.
The implication of the finding by the Learned Judge in paragraph
[126] of her ruling (that
the sum of R200 000.00 tendered is not
substantial enough inducement to prevent the Applicant from
absconding) is that a higher
amount may provide the necessary
inducement. In this regard:
15.1 The
Learned Judge ought at the very least have enquired whether the
Applicant was able to pay a higher
amount which would provide
sufficient inducement to prevent him from absconding.
15.2 The
Learned Judge ought to have imposed an increased amount of bail which
will provide the necessary
inducement to prevent him from absconding.
16.
The Learned Judge further erred in failing to consider whether the
imposition of strict
bail conditions will adequately address the
issue of abscondment including, but not limited to:
16.1
Requiring the Applicant to report to a suitable police station twice
daily.
16.2
Fitting a monitoring device to the Applicant which tracks his every
move.
16.3
Preventing the Applicant from applying for travel documents.
16.4
Prohibiting the Applicant from being present at any point of
departure from the country
.’
The test to be applied in the present application for leave to
appeal
[8] Before
dealing with the merits of the application for leave to appeal
it is
necessary to determine the test applicable to these proceedings.
[9] Prior to
the enactment of the Superior Courts Act 10 of 2013 (the Superior
Courts Act), the appellant had an automatic right of appeal.
[1]
However, under the
Superior Courts Act, in
respect of appeals against
the refusal of bail by the high court sitting as a court of first
instance, such application for leave
to appeal must be made to the
high court.
[2]
[10] In
S v Masoanganye
& another
[3]
Harms AP records the following:
‘
It is important to bear
in mind that the decision whether or not to grant bail is one
entrusted to the trial judge because that
is the person best equipped
to deal with the issue, having been steeped in the atmosphere of the
case. Through legislative oversight,
something this court has
complained about for more than two decades, and ignored by the
Executive, a convicted person has an automatic
right of appeal to
this court against a refusal of bail. But there is a limit to what
this court may do. It has to defer to the
exercise of the trial
court’s decision unless that court failed to bring an unbiased
judgment to bear on the issue, did not
act for substantial reasons,
or exercised its discretion capriciously or upon a wrong principle
.’
[11] In
S v Banger
[4]
the court noted that the courts requests to correct the legislative
oversight which resulted in the automatic right of appeal had
been
ignored for more than two decades. The court held that the complaint
referred to by Harms AP had been addressed in the
Superior Courts
Act. The
court further noted that as the Criminal Procedure Act 51 of
1977 (the CPA) did not provide for an appeal against the refusal of
bail by the high court sitting as a court of first instance, and as
it was not provided for in any other criminal procedural law,
such
appeal was regulated by the
Superior Courts Act.
[12] Referring to the provisions
of
s 16(1)
of the
Superior Courts Act the
court held the following at
para 12 of the judgment:
‘
Thus, it is clear that,
in respect of all appeals against the refusal of bail by the High
Court sitting as a court of first instance,
application for leave to
appeal must be made to that court. If that court refuses leave
to appeal, it may be granted by this
court in terms of
s 17(2)(
b
)
of the
Superior Courts Act. If
the High Court consisted of a single
judge, the appeal lies to a full court, unless a direction is given
in terms of
s 17(6)
that the matter requires the attention of this
court. If, as is the case here, the High Court of first instance
consisted of more
than one judge, the appeal lies directly to this
court.
’
The applicable test in the current application for leave to appeal
[13]
Section 17(1)
of the
Superior Courts Act reads
as follows:
‘
Leave to appeal may only
be given where the judge or judges concerned are of the opinion that
—
(
a
)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(
b
)
the decision sought on appeal does not fall within the ambit of
section 16
(2)
(a)
;
and
(
c
)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just
and prompt
resolution of the real issues between the parties.’
[14] The appellant submits that there
are reasonable prospects of success within the meaning of
s
17(1)(
a
)(i) of the
Superior Courts Act. The
phrase “reasonable
prospects of success” has previously been held to mean there is
a reasonable possibility that another
court might come to a different
decision.
[5]
[15] However, with the enactment of
s
17
of the
Superior Courts Act, the
test has obtained statutory force.
The test to be applied is to use the word “would” in
deciding whether to grant leave
to appeal. In other words, “would”
another court come to a different decision? In the unreported
decision of
The Mont Chevaux Trust (IT 2012/28) v Tina Goosen &
18 others,
[6]
the Land Claims Court held, albeit obiter, that the wording of the
subsection raised the bar for the test that now has to be applied
to
an application for leave to appeal. In
Notshokovu v S
[7]
it was held that an appellant faces a ‘higher and stringent
threshold’ in terms of the
Superior Courts Act.
[16
] In
Acting National Director of
Public Prosecutions & others v Democratic Alliance In Re:
Democratic Alliance v Acting National
Director of Public Prosecutions
& others,
[8]
Ledwaba DJP writing for the full court considered the test as
envisaged in
s 17
of the
Superior Courts Act. At
para 25 of the
judgment he dealt with the test set out in para 6 of
The
Mont
Chevaux Trust
judgment above where Bertelsmann J held the
following:
‘
It is clear that the
threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The
former test whether leave
to appeal should be granted was a reasonable prospect that another
court might come to a different conclusion,
see
Van
Heerden v Cronwright & Others
1985
(2) SA 342
(T) at 343H. The use of the word “would” in
the new statute indicates a measure of certainty that another court
will
differ from the court whose judgment is sought to be appealed
against.’
[17] Thus, in relation to the
provisions of
s 17
of the
Superior Courts Act, the
test in respect of
an application for leave to appeal is not whether another court “may”
come to a different decision
but the test is “would”
another court come to a different decision. I thus have to determine
whether the appellant
has succeeded in establishing whether there are
reasonable prospects that another court
would
come to a
different decision in respect of the application for bail pending
appeal.
The
applicant’s submissions
[18]
The first aspect dealt with by Mr
Howse
at the hearing related
to the test to be applied at this stage of the proceedings. He
acknowledged that the decision in
Banger
above did not deal
with the applicable test and submitted that the provisions of
s 17
of
the
Superior Courts Act applied
. The test is whether or not the
appellant has reasonable prospects of success and in this regard, he
referred to para 33 of the
judgment in
S v Essop.
[9]
In dealing with this application, he indicated that this court would
have to decide whether another court would find the appellant
had
reasonable prospects of success and was not a flight risk.
[19] In summary Mr
Howse
submitted that this court committed a misdirection when refusing bail
pending appeal as:
(a) it applied an incorrect test
in defining whether exceptional circumstances existed and
fell foul
of the decision in
S v Dlamini
;
S v Dladla & others
;
S v Joubert
;
S
v Schietekat
[10]
as at para 107 of my judgment, I expressed a view that ‘[t]he
personal circumstances of the applicant are not exceptional
nor
extra-ordinary’;
(b) I erred in finding that the
circumstances of the appellant were not unlike those which
the court
considered in
Babuile & others v S.
[11]
His submission was that it is on this aspect alone that the appellant
has reasonable prospects of success as a full court, will
find that
this court applied an incorrect test in respect of bail pending
appeal;
(c) the court applied an
incorrect test when deciding on bail pending appeal, as different
tests applied in respect of the offence in count 1, when compared
with the lesser test which applied to counts 2 to 6;
(d) the appellant presented
emphatic proof on record that he was not a flight risk and there
was
no evidence gainsaying the submissions and the evidence which he
placed before the court. The court was not mindful that the
respondent elected not to file affidavits nor present any evidence in
opposing bail pending appeal;
(e) the appellant has for the
last 10 years suffered from various chronic illnesses, and has
been
in the prison hospital since his conviction;
(f) the court failed to
consider the evidence presented in Exhibit “MMMM”,
namely, reports of the experts Tarryn Blake and Floss Mitchell in
regard to his minor daughter, Sonali and the emotional trauma
she
suffers from;
(g) the court failed to correctly
find that the paramountcy principle as enunciated in
S v M
[12]
superseded all considerations and weighed heavily in favour of a
finding that the appellant had shown exceptional circumstances
as
envisaged in
Dlamini’s
decision referred to in para
19(a) above as he was the primary caregiver. It was in the best
interests of Sonali for him to be admitted
to bail;
(h) the court misdirected itself
in finding that the decision in
Babuile
above was similar to
that of the appellant and consequently did not set his case apart
from
Babuile,
as in such decision, the applicants did not,
unlike the appellant, establish on an exceptional level that they
were not a flight
risk;
(i) the court engaged
in speculation at para 12 of the ruling that the appellant
would flee
given his emotional ties to Sonali, whereas the contrary is true;
(j) that para 126 of
the ruling in this matter permits an inference that the court
ought
to have enquired whether or not the appellant could afford a higher
amount and there was a duty on the court, if it was of
the view that
the amount was insufficient, to make further inquiries as to whether
or not the appellant’s family could raise
more funds. In this
regard, he relied on the decision in
S v Visser.
[13]
He submitted that the court had a duty to investigate fully the
capacity of an accused to pay bail. A court must go further than
this
court did in that inquiry and find out if a higher amount is
available for bail. Even if the amount is not readily
available, this court must inquire as to whether appropriate
arrangements can be made for the amount to be paid. In light of the
fact that the court did not conduct such inquiry, the appellant may
have tendered a higher amount;
(k) the court failed to
consider whether the imposition of strict bail conditions would
address the issue of abscondment such as requiring the appellant to
report to a suitable police station twice daily, fitting a
monitoring
device which tracks his every move, preventing him from applying for
travel documents, and prohibiting him from being
present at any point
of departure from the country; and
(l) it was wrong of
the court to adopt the approach that because a lengthy term
of
imprisonment had been imposed, bail pending appeal should be denied,
and in this regard the court failed to consider the decision
in the
matters of
S v Priyen Naidu
[14]
and
S v Stokes
.
[15]
The respondent’s submissions
[20]
Mr
Sankar
who appeared for the respondent submitted that the
test to be applied by the court at this stage of the proceedings is
as set out
in the decision of
S v Masoanganye
[16]
quoted in paragraph 10 above.
[21] He submitted that there was no
suggestion that the court acted injudiciously or capriciously
and the
ultimate discretion falls to the trial court to decide. He indicated
that what must be borne in mind is that the appellant
has to
discharge the onus, one cannot lay criticism at the door of the court
for failing to make the necessary inquiries. In addition,
he
indicated that ultimately the onus rests on the appellant to show
that exceptional circumstances exist and/or that it is in
the
interests of justice that he be admitted to bail pending appeal. The
fact that he has prospects of success or that the appeal
is arguable
does not necessarily mean he must be admitted to bail.
[22] In addition, Mr
Sankar
submitted that all the authorities and the cases which Mr
Howse
referred to were matters that had dealt with bail pending trial. The
appellant is a convicted person and there is always a risk
of
abscondment irrespective of his behaviour prior to conviction. He
indicated that for every one of the cases and examples which
Mr
Howse
referred to in his submissions, there were cases which pointed in
the other direction, namely, where an applicant, when released
on
bail pending appeal, absconded. The court will engage in a certain
amount of speculation and ‘play Nostradamus’
and decide
the matter by weighing up various factors.
[23] Further, the appellant is a man of
means and one cannot treat him as one would treat other appellants
when dealing with bail pending appeal. He submitted that the
appellant being a man of means given the prospect of facing a long
term of imprisonment, could take his daughter and flee.
[24] Even though courts impose bail
conditions that an accused person must not be at any international
borders or apply for any travel documents, and although he is in
possession of the appellant’s passport, it is common knowledge
that people in the position of the appellant are able to flee and
travel and have access to international borders.
[25] In relation to the submission that
the appellant has a serious medical condition, Mr
Sankar
indicated that it was noteworthy that for the four years during which
the trial proceeded and save for being sick for three days
suffering
from irritable bowel syndrome, the appellant was never hospitalised
for his so called serious or chronic illnesses as
described by Mr
Howse
.
[26] He further indicated that the use
of the words “exceptional” and “extra-ordinary”
as referred to in the court’s judgment did not mean, and he
certainly did not interpret it to mean that the court did not
apply
the correct test, but having regard to the transcript of the
proceedings, it would appear that the court was quoting Mr
Howse
’s
words. The appeal court will certainly not treat the use of those
words as being that the court incorrectly applied the
legal
principles and/or incorrectly applied the test.
[27] In so far as the appellant’s
submissions in relation to Sonali were concerned, he submitted that
it would be more emotionally traumatic to return the appellant to her
on bail pending appeal and thereafter if he is unsuccessful
on
appeal, to then remove him from her and place him in custody.
[28] He indicated that the court must
be mindful of the fact that, regarding bail pending appeal,
the
courts are, ‘less lenient and less liberty oriented’. In
the result Mr
Sankar
submitted that the appellant had not
discharged the onus to show either that exceptional circumstances
existed and that it was in
the interests of justice for him to be
released on bail pending appeal and consequently, there were no
reasonable prospects another
court would come to a different
decision.
Analysis
[29]
In deciding whether another court would come to a different decision,
I have to not only consider
the judgment and reasons for refusing to
admit the appellant to bail, but also consider the grounds of appeal
advanced. The appellant
has in the grounds of appeal expanded on
those advanced at the hearing of the initial application for bail
pending appeal and has
also attempted to introduce new grounds. As
these were not raised when the application for bail pending appeal
served before me
it is not necessary for me to deal with them.
[30] This application must thus
consider all the factors alluded to by the appellant and determine
whether there are reasonable prospects another court would find
individually or cumulatively that he had shown exceptional
circumstances
which in the interests of justice warranted his release
on bail pending appeal and whether it was in the interests of justice
that
he be released on bail pending appeal.
[31] I do not propose to revisit the judgment for
purposes of this application and propose to only consider
certain of
the grounds of appeal advanced at the hearing of this application.
[32] In respect of paras 1 and 2 of the
grounds of appeal, having regard to the transcript of the
proceedings
for 7 March 2019 at page 28, Mr
Howse
submitted in respect of
the onus to be discharged by the appellant, he would have to
establish exceptional circumstances which
in the interests of justice
permitted his release on bail pending appeal. The inquiry which the
court had to embark on were likewise
canvassed by him and are
summarised on page 28 as well. In his submissions however, he did not
draw a distinction between the various
offences for the purpose of
the application for bail pending appeal. Despite this, the different
onus which the appellant had to
discharge in respect of the schedule
5 and 6 offences, were considered by this court.
[33] In addition, if one considers the
judgment in its entirety, the personal circumstances of the
appellant
and his reasons for seeking to be admitted to bail were considered
holistically when determining whether or not he discharged
the onus.
This court was at pains to indicate that there is no “universal
definition” applicable to the definition
of “exceptional
circumstances” and that the court exercises a discretion based
on the facts of each individual matter.
[34] During the course of his
submissions it was Mr
Howse
who continuously made reference to
the appellant as ‘establishing truly exceptional
circumstances’, being ‘an
exceptional person’, who
fell into the ‘category of one of these extraordinary stable
individuals’ who had proven
‘at a really exceptional
level that he is not a flight risk’. This is evident throughout
the transcript of the proceedings
for 7 March 2019. It was in
reference to this that the court quoted him and recorded such finding
at para 107 of the judgment in
reference to his personal
circumstances.
[35] In regard to paras 3 and 4 of the
grounds of appeal, the judgment deals with all of these
considerations
and references the main grounds as including the
financial and emotional well-being of his children, specifically
Sonali. The appellant’s
health was considered at the time of
sentencing and when considering the application for bail pending
appeal. The letter included
in Exhibit “MMMM” dealt with
the appellant’s diagnosis. There was no reference to him
suffering from any chronic
illness.
[36] At the hearing of the application
on 28 May 2019, Mr
Howse
conceded that what is recorded in the
letter is that the appellant suffers from non-occlusive coronary
disease and blood pressure
and that he referred to it as being
“chronic”. In addition he conceded that it was never
brought to this court’s
attention until the application for
leave to appeal against the refusal to admit the appellant to bail
had been filed, that the
appellant had been incarcerated in the
prison hospital. The affidavit in support of the application for bail
pending appeal did
not deal with this nor was it ever canvassed
during the submissions in December 2018 or on 7 March 2019. Mr
Howse
could also not advance any reasons as to why the appellant did not
bring any application to bring new facts to light in support
of bail
pending appeal nor file any supplementary doctors’ reports.
This is what Mr
Howse
was instructed to do in both the
Stokes
and
Naidu
matters he referred to in the course of
argument. One would have thought that if the appellant’s health
condition was so serious
he would have taken steps to bring this to
the court’s attention for consideration when deciding the
application.
[37] As regards para 5 of the grounds
of appeal, it is correct that the appellant has no pending
cases and
only the six convictions in the current matter. In the judgment on
sentence, this court commended the appellant on his
success as a
businessman despite the odds. It has never been brought to the
court’s attention that the appellant resided
in Durban for a
short period of time. The evidence of the appellant at trial was that
his father gave him the home he occupied
at the time of his marriage
to his former wife, Kerusha.
[38] In mitigation of sentence it was
submitted that his nephews would have to abandon their studies
and
assist in the running of his business and that of managing his
mother’s commercial property. The evidence presented at
trial,
was that although the appellant resided next door to his mother, one
of his sisters and her children reside in the same
home as his mother
and there is someone to take care of his mother.
[39] As regards the reference to bail
pending trial, different considerations applied at that stage
of the
proceedings as opposed to bail pending appeal. In
S v Bailey
[17]
Seegobin J alluded to this in reference to
S v Williams
:
[18]
‘
Generally while courts
would always lean in favour of granting bail to an accused person
pending his/her trial, different considerations
apply after
conviction and sentence. This was pointed out by the court in
S
v Williams
where the
following was stated:
"Different
considerations do, of course, arise in granting bail after conviction
from those relevant in the granting of bail
pending trial. On the
authorities that I have been able to find it seems that it is putting
it too highly to say that before bail
can be granted to an applicant
on appeal against conviction there must always be a reasonable
prospect of success on appeal. On
the other hand even where there is
a reasonable prospect of success on appeal bail may be refused in
serious cases notwithstanding
that there is little danger of an
applicant absconding. Such cases as
R
v Milne and Erleigh (4)
1950
(4) SA 601
(W) and
R v
Mthembu
1961 (3) SA
468
(D) stress the discretion that lies with the Judge and indicate
that the proper approach should be towards allowing liberty to
persons where that can be done without any danger to the
administration of justice. In my view, to apply this test properly it
is necessary to put in the balance both the likelihood of the
applicant absconding and the prospects of success. Clearly, the two
factors are inter-connected because the less likely the prospects of
success are the more inducement there is on an applicant to
abscond.
In every case where bail after conviction is sought the
onus
is on the applicant to show why justice requires that he should be
granted bail.”’
(Footnote
omitted)
[40] In the course of the judgment I
dealt with the risk of abscondment and the relevance of the
appellant
adhering to his bail conditions pre-conviction. The authorities are
clear. Post-conviction there is however a greater
risk of
abscondment. The appellant’s personal circumstances serve to
guide the court as to whether there is an incentive
to flee. In
S
v Masoanganye
[19]
Harms AP observed that 'the personal circumstances of an accused -
much more than assets - determine whether the accused is a flight
risk’. Consequently, I disagree with Mr
Howse’s
submission that I engaged in speculation when referring to the
appellant’s emotional ties to Sonali.
[41] The appellant’s passport has
been in the possession of Mr
Sankar
, and not the police.
Neither in the affidavit in support of bail pending appeal nor in the
oral submissions by Mr
Howse,
were the grounds in para 5.11
canvassed in the application for bail pending appeal.
[42] In respect of the grounds of
appeal contained in paras 5.13 and 5.14, the appellant did not
directly involve himself in the commission of the offences but hired
others to do so. In addition, given that he hired persons
to murder
the deceased and engaged in the pattern of activity alleged, I do not
believe that it can be said that he does not pose
a danger to society
nor that he will not re-offend. In
S v Mabapa
[20]
Van Rooyen AJ observed as follows with reference to a bail
application pending appeal against conviction:
'Although the opportunity for
interfering with evidence is not that real at this stage, the
possibility that a convicted person
may abscond when on bail pending
the appeal, is increased.’
Most
importantly, this aspect was not canvassed in the submissions in the
application for bail pending appeal which served before
me.
[43] A proper reading of the report of
Tarryn Blake does not favour the release of the appellant
at all.
This was dealt with extensively at the sentencing stage of the
proceedings. In fact, what the respective reports submitted
do
indicate is that although he refers to himself as ‘primary
caregiver’, Mrs Soni was an active participant when it
came to
Sonali and continues to be.
[44] The letter from Floss Mitchell
referred to in the application for bail pending appeal, indicates
that Sonali misunderstood the nature of the bail proceedings and
indicated that should the appellant not be granted bail and the
appellant be further incarcerated, contact visits should occur. At
the time of sentencing an order to that effect was issued based
on
the report which formed part of exhibit ‘MMMM”.
Correctional services appears to be complying with such order. I
have
no doubt that if the court order was not being complied with, a
complaint regarding same would have formed part of the application
for bail pending appeal, as it did in the
Stokes
matter
.
It
is a matter of fact that Kerusha Soni has been the primary caregiver
of Sonali and Ariv since the appellant’s incarceration
on 18
September 2018, some nine months.
[45] In respect of para 10 of the
grounds of appeal this has already been canvassed in the judgement.
In any event, that someone is a primary caregiver does not mean a
term of imprisonment will not be imposed. In addition, the children
have been residing with Mrs Soni since 18 September 2018. Ms Floss
Mitchell’s report also confirms this and does not record
any
difficulties with this arrangement.
[46]
Insofar as para 11 of the grounds of appeal are concerned, the
sentences on counts 2 to 5 were
ordered to run concurrently with the
sentence imposed on count 1. Whilst I accept these are relatively
short periods of imprisonment,
the prospects of the appellant
succeeding in his appeal against counts 2 to 5 are unlikely. In
addition, in respect of the merits
of the appeal on count 6 the
judgment delivered on 11 April 2019 canvassed this in detail.
[47] In the judgment the prospects of
success on appeal in respect of all the convictions were canvassed.
In doing so, I was mindful of the caution issued by the SCA that the
application for leave to appeal and bail pending appeal is
‘not
a dress rehearsal’ for the court ultimately hearing the appeal.
[48] Among the criticisms levelled
during the submissions made by Mr
Howse
was that the court did
not sufficiently canvass the aspect of the bail amount and
conditions. He submitted that the court had a
duty to hold an inquiry
in relation to the amount of bail which the appellant could afford.
In this regard he relied on the provisions
of
s 60
of the CPA which
deals with bail generally but specifically relied on the provisions
of
s 60(2B)
for his submission that the court ought to have made more
inquiries than it did as reflected in the transcript at page 111.
Section 60(2B)
reads as follows:
‘
(a)
If the court is satisfied that the interest of justice permit the
release of an accused on
bail as provided for in subsection (1), and
if the payment of a sum of money is to be considered as a condition
of bail, the court
must hold a separate inquiry into the ability of
the accused to pay the sum of money being considered or any other
appropriate
sum.
(b)
If,
after an inquiry referred to in paragraph
(a)
,
it is found that the accused is –
(i)
unable to pay any sum of money, the court must consider setting
appropriate
conditions that do not include an amount of money for the
release of the accused on bail or must consider the release of the
accused
in terms of a guarantee as provided for in subsection (13)
(
b
); or
(ii)
able to pay a sum of money, the court must consider setting
conditions for the release
of the accused on bail and a sum of money
which is appropriate in the circumstances
.’
[49] The provisions of
s 60(1)
(a)
which precedes the section Mr
Howse
relied on reads as
follows:
‘
An
accused who is in custody in respect of an offence shall, subject to
the provisions of
section 50
(6), be entitled to be released on bail
at any stage
preceding
his or her conviction in respect of such offence, if the court is
satisfied the interests of justice so permit
.’
(My
emphasis.)
[50] I have had regard to the
submissions in the application for bail pending appeal on 7 March
2019, in which Mr
Howse
indicated that should the court be
disposed to granting bail pending appeal, to ensure the appellant did
not abscond, the amount
of bail could be increased and bail
conditions could be imposed. The transcript for 7 March 2019 at pages
60 to 61 records the
exchange between the court and Mr
Howse
in relation to the increase in the amount of bail as well as issues
in relation to bail conditions. The submission of Mr
Howse
was
for the court to increase the bail amount ‘
within
reason, bearing in mind that the applicant’s earning capacity
had been considerably reduced
’. The court asked the
following question ‘Okay, so what is within reason then?’.
Mr
Howse
after taking instructions reverted and indicated that
the bail amount could be doubled to R200 000.
[51] His submission was that this was
‘appropriate and commensurate in the circumstances’.
In
regard to the bail conditions the court raised the suitability of
Mountain Rise Police Station as an appropriate police station
for him
to report at given the appellant’s defence. This was also
dealt with in the transcript at page 61. I have considered
the
authorities in respect of the imposition of bail conditions.
Ultimately what must be borne in mind is that in relation to amount
of bail and the conditions to be imposed, the court is often guided
by the submissions of the appellant and his legal representative.
[52] Mr
Howse
also referred to
the decision in
S v Visser
[21]
as authority for the proposition that the court needs to go further
than merely rely on the submissions of the appellant and that
the
court has a duty to delve into the ability of an applicant to afford
a higher amount if it is not satisfied that the amount
tendered is a
sufficient inducement to discourage the applicant from absconding. In
Visser
, reading from the headnote, the court held that:
‘
.
. .it is the duty of the magistrate in the fixing the amount of bail,
not only to take into consideration the offence which has
been
committed but also,
inter
alia
, the capacity of
the accused to find bail
.’
[53] Having regard to the decision in
Visser
it would appear that a court must make inquiries in
relation to the ability of an applicant to afford an amount of bail.
The amount to be fixed must not be so high as to constitute a refusal
of bail. In my view, if one has regard to the exchange between
the
court and Mr
Howse
in relation to the amount of bail to be
fixed the questions raised were sufficient to inquire into the
affordability of the appellant
and his family to afford an amount
higher than the original amount of R100 000 paid.
[54] In addition, the aspect of the
imposition of bail conditions was also canvassed with Mr
Howse
.
I am of the view that these were canvassed sufficiently with the
appellant who it must be borne in mind ultimately bears the onus.
[55]
S v Essop
[22]
the court also dealt with the amount of bail payable by a convicted
and sentenced appellant. The court was mindful of the fact
that the
presumption of innocence no longer applied. Prior to his trial the
appellant in that matter was released on R10 000
bail but at the
time of bringing the application for bail pending appeal an amount of
R20 000 was suggested. The court in
taking the view that the
amount was too low took into account the appellant’s current
status and that the amount ought not
to be so high as to be out of
reach of the appellant. The court held ‘the amount has to be
fair and serve as an incentive’.
[23]
[56] During the course of the
submissions Mr
Howse
made much of the fact that the appellant
had succeeded in showing there were reasonable prospects of success
within the context
of establishing exceptional circumstances and
establishing the interests of justice permitted his release on bail
pending his appeals.
This aspect and the fact that an applicant has
been granted leave to appeal is not an exceptional circumstance on
its own and was
canvassed in detail in the judgment and extensive
reference was made to the decision of
S v Bruintjies.
[24]
[57] During the course of his
submissions Mr
Howse
conceded that the appeal was arguable and
‘could go either way’. Under those circumstances and in
my view this is a
neutral factor for purposes of the application for
leave to appeal the refusal of bail pending appeal. There are
reasonable prospects
either way and consequently, this did not and
ought not to have played a major factor in deciding whether the
appellant had discharged
the overall onus resting on him.
[58] In
S v Scott–Crossley
[25]
the court referred to the relevance of prospects of success in cases
not canvassed by
s 60(11)
of the CPA. In matters covered by the
provisions of
s 60(11)
where a conviction has occurred for a serious
offence the consideration of prospects of success in itself does not
constitute an
exceptional circumstance but is certainly one of the
considerations that a court must consider in determining whether
exceptional
circumstances exist. At para 7 of the judgment the court
dealt with the level of the examination of prospects of success
required
of the court hearing the bail application. It held:
‘
The
prospects of success do not in itself amount to exceptional
circumstances as envisaged by the Act – the Court must consider
all relevant factors and determine whether individually or
cumulatively they constitute exceptional circumstances which would
justify his release. . . . In evaluating the prospects of success it
is not the function of this Court to analyse the evidence in
the
Court
a quo
in great detail. If the evidence is extensively analysed it would
become a dress rehearsal for the appeal to follow: cf
S
v Viljoen
2002 (2)
SACR 550
(SCA) . . .at 561
g
– i
. Findings
made at this stage might also create an untenable situation for the
court hearing the appeal on the merits
.’
[59] Insofar as the aspect in relation
to imposing bail conditions is concerned, the court only decides
on
this aspect once it is satisfied that the appellant has discharged
the onus upon him to show either that exceptional circumstances
exist, alternatively, that it is in the interests of justice for him
to be released on bail pending appeal.
[60] During the course of submissions,
I was referred to the application for bail pending appeal
instituted
by
Priyen Naidu
[26]
as well as the decision in
S v Stokes
[27]
similarly an application for bail pending appeal.
[61] Only copies of the orders in these
two matters were annexed to the application for leave to
appeal.
Submissions were made by Mr
Howse,
specifically in the matter
of
Priyen Naidu
, that he was facing a lengthy term of
imprisonment after being convicted for murder. As a consequence of
the fact that the reasons
for the issuing of these orders and the
granting of bail pending appeal was not made available by the
appellant, despite a request
for same, and as I was unfamiliar with
the basis for these orders, I requested copies of the application
papers submitted by both
appellants in those matters as Mr
Howse
was significantly involved in both of them.
[62] Mr
Sankar
was also invited
to submit any further submissions on receipt of the applications. A
reading of the affidavit in the
Priyen Naidu
matter is
instructive and I may add Mr
Howse
failed to place these facts
before me in making submissions that a court has granted bail pending
appeal, most notably that these
were applications for bail pending
appeal based on new facts.
[63] The facts of the
Priyen Naidu
matter were the following. He was incarcerated in Westville Prison
serving a sentence of life imprisonment. He was arrested and
charged
in 2009 and released on bail of R25 000 subject to conditions on
3 August 2009. He was convicted on 4 July 2014 and
his bail lapsed.
An application for leave to appeal his conviction was refused and an
application for leave to appeal against the
sentence was granted on 6
August 2014. At the time these orders were granted he simultaneously
sought bail pending appeal which
was refused.
[64] Subsequent to the refusal of leave
to appeal his conviction on 6 August 2014, he petitioned
the SCA for
leave to appeal his conviction. On 9 February 2015, the SCA granted
leave to appeal to the full bench against his conviction.
As a
consequence, he renewed his application for bail pending appeal on
the basis that there were new facts and circumstances which
arose
subsequent to bail pending appeal being refused.
[65]
In summary these were that he was granted leave to appeal the
conviction by the SCA and consequently
he had reasonable prospects of
his conviction being set aside. That his medical condition, he being
diagnosed with Haemangioma,
had worsened and had been exacerbated as
a consequence of an assault to that side of his face whilst
incarcerated in a cell at
Westville Prison. In support of his medical
condition, a medical report was put up confirming this which also
indicated that his
blood pressure needed to be kept under control and
also that the right side of his face needed to be protected and that
his condition
had worsened.
[66] In respect of the matter of
S v
Stokes
, the facts in that matter were similar to that of
Priyen
Naidu
save that
Stokes
was convicted for a white collar
crime, namely fraud and theft. Pending sentencing proceedings he was
released on bail in the sum
of R250 000 which had been secured
by a guarantee from his brother. On the date of his conviction, being
2 August 2016, his
bail lapsed by operation of law.
[67] Following his conviction he
brought his substantive application for the extension of his bail
pending sentencing. Such was granted for a period of seven and a half
months and on 22 March 2017 he was sentenced. He applied
for leave to
appeal the conviction and sentence and simultaneously applied for the
extension of his bail pending the petition for
leave to appeal to the
SCA. His application for leave to appeal against his conviction and
sentence as well as bail pending the
petition were refused on the
same day. After commencing serving his sentence, he lodged his
petition and on 20 September 2017 the
SCA granted him leave to appeal
to the full court of the KZN division against his conviction and
sentence. He thereafter instituted
an application for bail pending
appeal after leave to appeal was granted by the SCA.
[68]
In summary what formed the basis for
Stokes’
application
for bail pending the appeal were a number of factors being:
(a) a new fact had come to light,
namely the SCA had granted him leave to appeal his conviction
and
sentence;
(b) the circumstances of his wife
Carla and his daughter T had deteriorated since his sentence
and he
was the primary caregiver not only to T but also to his wife Carla;
and
(c) his health condition
being his epilepsy had deteriorated significantly as his seizures
increased and he was experiencing constant epileptic auras.
[69] In the affidavit in support of
bail pending appeal Stokes dealt extensively with his medical
condition, his epilepsy and the inadequacy of the treatment that he
had received and not received since he commenced serving his
sentence. Part of the order on sentence related to the Department of
Social Development and Health investigating the medical circumstances
of his wife Carla and taking steps to assist with her psychiatric
evaluation and assistance. No steps had been taken by the Department
of Social Development and Health from the time of sentencing being 22
March 2017 until the time he deposed to the affidavit in
October
2017. There had thus been no compliance with the order.
[70] In addition, in terms of the
order, his daughter T was required to be assessed by the Department
of Social Development and a designated social worker was to be
appointed to assist and to establish whether she was a minor child
in
need of care and for educational support and proper care to be given
to her. This order likewise was not complied with from
the time of
sentencing until the time of him deposing to the affidavit.
[71] His wife’s condition had
deteriorated significantly since his incarceration and furthermore
his businesses were suffering. As a result and as a consequence
Stokes was unable to pay for her institutionalised care.
[72] To the affidavit Stokes annexed
two job offers which he had received from Southerly’s
and
SA Vehicle Security indicating that he would be able to operate his
business but also earn a salary to pay for his wife’s
institutionalisation as well as T’s maintenance. It would
appear that since the early stages of her development, T was cared
for by her father given her mother’s condition. At the time of
his incarceration her 77 year old grandmother moved in and
temporarily lived with her but was unable to care for her.
[73] In addition, her home schooling
stopped as there were insufficient funds to pay for her tutor
and
available funds were used to pay for food and his wife’s
accommodation at Waynol. Consequently, T had not received any
school
tutoring. In addition, her step-brother moved in to the home to care
for her as best he could but she was alone during the
day as he
worked and at night studied part time for a B-Com degree.
[74] I have had regard to these orders
and the affidavits and annexures. At the outset, I must place
on
record that I was not referred to these orders nor these papers when
the application for bail pending appeal was heard. In my
view I ought
not to consider these further. However, as it was pertinently raised
in the grounds of appeal and lest I be criticised
for not dealing
with these I place the following on record.
[75] As with all matters of this
nature, when deciding on bail pending appeal, the facts of each
individual case will determine whether singularly or cumulatively
exceptional circumstances exist or if the interests of justice
permit
the release of an applicant on bail pending appeal.
[76] The facts of the
Naidu
and
Stokes
matters above appear to differ factually from that of
the appellant. In addition, both these persons were initially denied
bail
pending appeal. These two applications were brought on new facts
and substantiated by documentary evidence. In the absence of both
courts reasons for granting bail pending appeal I would be
speculating as to the reasons for such decisions and I refrain from
doing so.
Concluding remarks
[77] In conclusion a number of aspects
need to be addressed which were dealt with in an exchange
of
correspondence which does not form part of the record of these
proceedings. The first relates to the aspect of condonation,
the
allocation of a date for the hearing of the appeal and the presence
of Mr
Sankar
at the hearing of the application.
[78] On 11 April 2019, prior to being
handed a copy of the written judgment in the application for
leave to
appeal, and after the summary of the judgment had been read into the
record, Mr
Howse
indicated that he had received instructions
to note an appeal against the refusal of bail.
[79] Such intention was recorded and I
suggested that he read the written judgment, prepare the necessary
notice and serve and file same. As it was the last Thursday of
recess, and I was scheduled to commence circuit court in Ramsgate,
I
proposed that he liaise with my registrar via email and a date could
be arranged for the hearing of such application for leave
to appeal
in consultation with the Judge President.
[80] Immediately after court had
adjourned, the applicant’s attorney of record, Mr Ayoob
attended
at my registrar’s office in my presence. He requested
that the matter be dealt with on 18 April 2019. I once again
reiterated
that I would be on circuit and could not allocate any date
until such time as a formal application had been served and filed and
dates had been arranged in consultation with the Judge President and
also with the DPP’s offices. I once against advised
Mr Ayoob to
liaise with the DPP’s office as well as my registrar so that I
could enquire from the Judge President when the
matter could be
accommodated.
[81] The application minus all the
annexures was received from the clerk of court, Izingolweni on
7 May
2019. Attempts had been made to email this through to my registrar,
Ms Matthewson, however problems have been experienced
with the
judiciary emails.
[82] Prior to receipt of the
application, telephonic enquiries were made with my registrar on 25
April 2019 when she conveyed to Mr Ayoob that we were having
difficulty accessing our emails at the judiciary address but that
he
should continue in his attempts to send the emails. She informed him
that the matter could be dealt with on our return to Durban
in May at
the commencement of the next session.
[83] In the interim, Mr
Sankar
of
the DPP’s offices had been in telephonic contact with my
registrar. He indicated that he was under pressure from the
applicant’s
attorney of record to deal with the application for
leave to appeal. He was aware that the court was experiencing
infrastructural
challenges at Izingolweni and it would be near
impossible to accommodate the matter on the court roll and it could
not be accommodated
sooner.
[84] I may add that given these
infrastructural difficulties the trial which I was engaged with took
longer than expected and the remainder of the matters on the calendar
had to be adjourned. I have noted the request from Mr Ayoob’s
letter that the matter be accommodated before court hours or after
court hours. The matter could not be accommodated in the manner
suggested as the court staff would not be available, most importantly
the stenographer. Special travel arrangements had to be made
for the
stenographer to be present during court hours in the trial matter
that I was busy with. It was simply not possible to make
alternative
arrangements to accommodate the matter on the roll and arrange for
the necessary court staff to be in attendance. I
may also add for the
most part of the months of April and May there were several holidays
which resulted in shortened weeks. This
is apart from the Easter
weekend.
[85] As the application for leave to
appeal was noted on 11 April 2019, the issue of condonation
did not
arise. Although an incomplete application was filed in April 2019,
the matter was accommodated at the earliest available
date and on
receipt of a properly completed set of applications papers. Mr
Howse
acknowledged at the commencement of the argument that the
completed set was filed on 15 May 2019. In addition a further bundle
of
authorities was delivered to my registrar in Durban on 20 May
2019.
[86]
A preliminary issue which arose related to the attendance of Mr
Sankar
at the hearing of the matter. Prior to the trial
commencing at the pre-trial procedures, the appellant had noted an
objection to
Mr
Sankar
dealing with the matter and had bought
an application for his recusal. This has been canvassed in the main
judgment.
[87] Prior to the hearing of the
application for leave to appeal against the refusal to grant bail,
I
raised this aspect with counsel and confirmed that the appellant had
no objection to Mr
Sankar
now dealing with the matter in light
of the fact that all future proceedings will be governed by the
record of proceedings. Mr
Howse
placed on record that as Mr
du
Toit
had retired, the alternative will be to wait for someone
other than Mr
Sankar
to familiarise themselves with the entire
record of proceedings, transcripts, exhibits, and various judgments.
This would delay
this application considerably and consequently the
appellant’s instructions were not to object to Mr
Sankar’s
further involvement in the matter.
[88] Given that the appellant had withdrawn
his objection to Mr
Sankar’s
involvement in the matter,
he placed himself on record for the respondent in these proceedings.
[89] On receipt of the application for
leave to appeal, it was noted that the annexures had been
omitted.
Correspondence was exchanged with the appellant’s attorney of
record, Ayoob Attorneys, to request same.
[90] At the hearing of the matter, Mr
Howse
made reference to these orders and these cases and
submitted that the judges in these matters were of the view that bail
pending
appeal ought to be granted despite the seriousness of the
offences and that I should be guided by the orders and similarly
grant
leave to appeal to the appellant in this matter.
[91] The affidavits in these matters were
requested at the hearing of the application, to enable me to
familiarise myself with the facts which informed the orders as I was
not provided with the respective judges’ reasons for
the
orders, despite a prior request for same. These were subsequently
supplied after the hearing of the matter, the last set of
papers
being received on 31 May 2019. Although I indicated that Mr
Sankar
could make further written submissions on receipt thereof he has
elected not to do so.
[92] I have considered the grounds of
appeal, the authorities referred to and having regard to the
submissions of both Mr
Howse
and Mr
Sankar,
I am of the
view that the appellant has not shown that there are reasonable
prospects another court would come to a different decision
in respect
of the application to be admitted to bail pending his appeals to the
SCA.
Order
[93]
In the result, the application for leave to appeal against the
refusal to admit the appellant
to bail pending his appeals to the SCA
in respect of his convictions and sentences is dismissed.
HENRIQUES
J
CASE
INFORMATION
Date of
argument
: 28 May
2019
Judgment
delivered
: 4 June
2019
APPEARANCES
Counsel for
the State
: Mr
Sankar
Instructed
by
: The
Director of Public Prosecutions
Counsel for
the Applicant
:
Mr
Howse
Instructed
by
: Ayoob
Attorneys
Suite 2, SDC Centre
495 Church Street
Pietermaritzburg
[1]
S v Botha en ‘n Ander
2002
(2) SA 680
(SCA) paras 13-14.
[2]
S v Banger
2016 (1) SACR 115
(SCA) para 12.
[3]
S v Masoanganye & another
2012 (1) SACR 292
(SCA) para
15.
[4]
2016 (1) SACR 115 (SCA).
[5]
Van Heerden v Cronwright & others
1985 (2) SA 342
(T) at
343H-I.
[6]
The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 others
LCC14R/2014 dated 3 November 2014.
[7]
Notshokovu v S
(157/15)
[2016] ZASCA 112
(7 September 2016)
para 2.
[8]
Acting National Director of Public Prosecutions & others v
Democratic Alliance In Re: Democratic Alliance v Acting National
Director of Public Prosecutions & others
(19577/09) [2016]
ZAGPPHC 489 (24 June 2016).
[9]
S v Essop
2018 (1) SACR 99 (GP).
[10]
S v Dlamini
;
S v Dladla & others
;
S v Joubert
;
S
v Schietekat
1999 (2) SACR 51 (CC).
[11]
Babuile & others v S
(CC32/2014) [2015] ZAGPPHC 110 (13
October 2015).
[12]
S v M
2007 (2) SACR 539 (CC).
[13]
S v Visser
1975 (2) SA 342 (C).
[14]
S v Priyen Naidu
unreported decision of the High Court of
South Africa, KwaZulu-Natal Local Division, Durban case number
CC9/2011.
[15]
S v Stokes
unreported decision of the High Court of South
Africa, KwaZulu-Natal Local Division, Durban case number CC233/05.
[16]
S v Masoanganye & another
2012 (1) SACR 292
(SCA).
[17]
S v Bailey
2015 JDR 1117 (KZP) para 26.
[18]
S v Williams
1981 (1) SA 1170 (ZA).
[19]
S v Masoanganye & another
2012 (1) SACR 292
(SCA) para
19.
[20]
S v Mabapa
2003
(2) SACR 579
(T) para 8.
[21]
S v Visser
1975 (2) SA 342 (C).
[22]
S v Essop
2018 (1) SACR 99 (GP).
[23]
Ibid para 40.
[24]
S v Bruintjies
2003 (2) SACR 575
(SCA) para 6.
[25]
S v Scott–Crossley
2007 (2) SACR 470
(SCA) paras 5-7.
[26]
S v Priyen Naidu
unreported decision of the High Court of
South Africa, KwaZulu-Natal Local Division, Durban case number
CC9/2011.
[27]
S v Stokes
unreported decision of the High Court of South
Africa, KwaZulu-Natal Local Division, Durban case number CC233/05.