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[2019] ZAWCHC 38
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Solomons v S (CC23/2018) [2019] ZAWCHC 38; [2019] 2 All SA 833 (WCC) (29 March 2019)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
CC23/2018
In
the matter between:
HORATIO
SOLOMONS
Applicant/Accused
and
THE
STATE
Hearing:
18 March 2019
Judgment: 29 March 2019
JUDGMENT
De Waal AJ:
[1]
The Applicant is
charged jointly with 11 others on various counts of planned or
premeditated murder, contraventions of the
Prevention of Organised
Crime Act 121 of 1998 (“
POCA
”),
and drug dealing. There are 71 counts in total.
[2]
The Applicant was
arrested on 22 August 2017. The matter was pending in a
lower court until 16 May 2018 in order
to finalise bail
proceedings and aspects of the investigation.
[3]
The matter was
subsequently transferred to the High Court and the trial is scheduled
to start on 6 May 2019.
[4]
The Applicant is
Accused 1 in the matter. Accused 4 and Accused 6
brought bail applications in the Cape Town
Magistrates’ Court
during January 2018, which were denied. Bail was further
refused on appeal for these accused
by the High Court. Accused 5
brought a bail application in the Magistrates’ Court which was
successful.
[5]
The Applicant elected
not to bring his bail application in the Magistrates’ Court.
Instead, the Applicant launched motion
proceedings in this Court on
5 March 2019 aimed at his release on bail, pending the
finalisation of the trial. This
Court is accordingly hearing
the Applicant’s bail application as Court of first instance.
[6]
The background is an
investigation into the operation of criminal gangs in the police
precincts of Blue Downs, which includes, amongst
others, Delft and
Belhar. Allegations of criminal activities by a gang called the
“
Terrible
Josters
”
were, in particular, closely examined. In a related matter,
currently pending before the High Court, other alleged
Terrible
Josters members are prosecuted on 202 counts of criminal gang
activity under POCA.
[7]
I now turn to deal with
the requirements for bail in a case such as the present one, where
some of the charges relate to offences
listed in Schedule 6 of
the Criminal Procedure Act 51 of 1977 (“
CPA
”).
The requirements
for bail in respect of Schedule 6 offences
[8]
The statutory framework
and legal principles applicable to bail applications where the
applicant is charged with a Schedule 6
offence were
comprehensively analysed by the Constitutional Court in
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC). In this matter a challenge to the
constitutionality of the CPA’s provisions relating to bail, in
particular the
regime applicable to Schedule 6 offences, was
rejected by the Constitutional Court.
[9]
Whilst
Dlamini
remains the leading case, the legal principles have been developed in
subsequent decisions, including a number of SCA judgments.
I
refer to these below, to the extent necessary.
[10]
The
circumstances in which bail may be granted are provided for in s 60
of the CPA. Generally, an accused person who
is in custody is
entitled to be released on bail “
if
the court is satisfied that the interests of justice so permit
”.
[1]
[11]
Five
grounds are listed in s 60(4)(a) – (e) which, if
established, means that the interests of justice do not permit
the
release of the accused from detention. Each of the five grounds
are further developed in ss 60(5) to 60(8A) and
60(9), which
contain an extensive and detailed list of the potential factors for
and against the grant of bail, to which a Court
must pay regard in
considering where the interests of justice lie.
[2]
[12]
In the present
instance, the relevant subsections are s 60(4), (5), (8A) and
(9) of the CPA:
12.1.
The relevant parts of
s 60(4) provides as follows (my underlining):
“
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 there is the
likelihood that the accused, if he or she were released on bail, will
endanger
the safety of the public
or any particular person or
will commit a Schedule 1 offence; or
…
(e) where in
exceptional circumstances there is the likelihood that the release of
the accused will disturb the public order or
undermine the public
peace or security
.”
12.2.
Section 60(5),
which elaborates on s 60(4)(a), provides as follows (my
underlining):
“
(5)
In considering whether the ground in subsection (4) (a) has been
established, the court may, where applicable, take into account
the
following factors, namely-
(a)
the degree of
violence towards others
implicit
in the charge against the accused;
(b)
any threat of
violence which the accused may have made to any person;
(c)
any
resentment the accused is alleged to harbour
against any person;
(d)
any disposition
to violence on the part of the accused, as is evident from his or her
past conduct;
(e)
any
disposition of the accused to commit offences referred to in Schedule
1, as is evident from his or her past conduct
;
(f)
the
prevalence of a particular type of offence
;
(g)
any evidence
that the accused previously committed an offence referred to in
Schedule 1 while released on bail; or
(h)
any other factor
which in the opinion of the court should be taken into account.”
12.3.
Section 60(8A),
which elaborates on s 60(4)(e), provides as follows:
“
(8A)
In considering whether the ground in subsection (4) (e) has been
established, the court may, where applicable, take into account
the
following factors, namely-
(a)
whether the
nature of the offence or the circumstances under which the offence
was committed is
likely
to induce a sense of shock or outrage in the community where the
offence was committed
;
(b)
whether the
shock or outrage of the community might lead to public disorder if
the accused is released;
(c)
whether the
safety of the accused might be jeopardized by his or her release
;
(d)
whether the
sense of peace and security among members of the public will be
undermined or jeopardized
by
the release of the accused;
(e)
whether the
release of the accused will
undermine
or jeopardize the public confidence in the criminal justice system
;
or
(f)
any other factor
which in the opinion of the court should be taken into account.”
12.4.
Section 60(9),
which provides for the weighing exercise to be done in determining
where the interests of justice lies, provides
as follows (my
underlining):
“
(9)
In considering the question in subsection (4) the court shall decide
the matter by
weighing
the interests of justice against the right of the accused to his or
her personal freedom and in particular the prejudice
he or she is
likely to suffer if he or she were to be detained in custody
,
taking into account, where applicable, the following factors, namely-
(a)
the period
for which the accused has already been in custody since his or her
arrest
;
(b)
the probable
period of detention until the disposal or conclusion of the trial if
the accused is not released on bail
;
(c)
the reason for
any delay in the disposal or conclusion of the trial and any fault on
the part of the accused with regard to such
delay;
(d)
any financial
loss which the accused may suffer owing to his or her detention
;
(e)
any
impediment to the preparation of the accused's defence
or any delay in obtaining legal
representation
which
may be brought about by the detention of the accused
;
(f)
the state of
health of the accused; or
(g)
any other factor
which in the opinion of the court should be taken into account.”
[13]
Graver
offences (the offences listed in Schedules 5 and 6 of the CPA)
are subject to a more stringent regime. While an
arrested
person is generally entitled to be released on bail if a Court is
satisfied that the interests of justice so permit, the
reverse
applies where a person has been charged with a Schedule 6
offence.
[3]
In such a
case, s60(11) of the CPA provides that a Court is obliged to “
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 interests of
justice permit his or her release
”.
[14]
The
reversal of the general rule was held in
Dlamini
to limit the constitutional right to bail, but the relevant provision
(s 60(11)(a)) survived a declaration of invalidity because
the
limitation was held to be “
reasonable
and justifiable in terms of s 36 of the Constitution in our
current circumstances
”.
[4]
[15]
The
“
potential
factors for and against the grant of bail
”
listed in the CPA (ss60(4) – (9)) are no less relevant to the
assessment of bail in relation to Schedule 6 offences
than they
are in relation to lesser offences. However, before a Court may
grant bail to a person charged with a Schedule 6
offence it must
be satisfied, upon an evaluation of all the factors that are
ordinarily relevant to the grant or refusal of bail,
that
circumstances exist that warrant an exception being made to the
general rule that the accused must remain in custody.
[5]
Differently put, exceptional circumstances do not mean that
they must be circumstances above and beyond, and generally different
from those enumerated' in ss 60(4) – (9): “
ordinary
circumstances present to an exceptional degree, may lead to a finding
that release on bail is justified
”.
[6]
[16]
What
is required in respect of Schedule 6 offences is that the Court
consider all relevant factors and determine whether individually
or
cumulatively they warrant a finding that circumstances of an
exceptional nature exist which justify the release of the accused.
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”.
[7]
[17]
The
effect of subsection 60(11) was described as follows in
Dlamini
:
[8]
“
(a)
The subsection says that for those awaiting trial on the offences
listed in Schedule 6, the ordinary equitable test of the interests
of
justice determined according to the exemplary list of considerations
set out in ss (4) – (9) has to be applied differently.
(b)
Under s (11)(a)
the lawgiver makes it quite plain that a formal onus rests on a
detainee to ‘satisfy the court’.
(c)
Furthermore,
unlike other applicants for bail, such detainees cannot put relevant
factors before the court informally, nor can they
rely on information
produced by the prosecution; they actually have to adduce evidence.
(d)
In addition, the
evaluation of such cases has the predetermined starting point that
continued detention is the norm.
(e)
Finally, and
crucially, such applicants for bail have to satisfy the court that
“exceptional circumstances” exist.”
[18]
The
form that a bail enquiry should take is not prescribed by the CPA,
but it requires at least that the interested parties –
the
prosecution and the accused – are given an adequate opportunity
to be heard.
[9]
Although a
bail inquiry is less formal than a trial, it remains a formal court
procedure that is essentially adversarial
in nature. A Court is
afforded “
greater
inquisitorial powers in such an inquiry, but those powers are
afforded so as to ensure that all material factors are brought
to
account, even when they are not presented by the parties, and not to
enable a Court to disregard any of the factors
”
listed in s 60 of the CPA.
[10]
A bail inquiry, in other words, “
is
an ordinary judicial process, adapted as far as need be to take
account of its peculiarities, that is to be conducted impartially
and
judicially and in accordance with the relevant statutory
prescripts
”.
[11]
[19]
Although
not specifically listed in ss 60(4) to (9), proof by an accused
that he will probably be acquitted can serve as “
exceptional
circumstances
”
for the purposes of s 60(11)(a) of the CPA.
[12]
[20]
However,
in order to successfully challenge the merits of the State’s
case in bail proceedings pertaining to a Schedule 6
offence, the
applicant needs to prove on a balance of probability that he will be
acquitted of the charge.
[13]
Until an applicant has set up a
prima
facie
case of the prosecution failing there is no call on the State to
rebut his evidence to that effect.
[14]
[21]
This
may well be a difficult and risky route for an accused, especially
since the State is not obliged to show its hand in advance,
at least
not before the time when the contents of the docket must be made
available to the defence. It is risky because the
accused will
almost invariably have to reveal his version of the events and to an
extent sacrifice his right to silence.
But it must be kept in
mind that an attack on the prosecution case is not necessary to
discharge the onus set in s 60(11).
The applicant who
chooses to follow that route does so out of choice and “
must
make his own way and not expect to have it cleared before him
”.
[15]
[22]
It
is not the function of the Court hearing a bail application to
analyse the evidence regarding the merits of the charges in great
detail. If the evidence is extensively analysed it would become
a “
dress
rehearsal
”
for the trial to follow. Findings made at the bail stage might
also create an untenable situation for the Court hearing
the
trial.
[16]
[23]
It
is further relevant whether or not the applicant for bail testifies
viva
voce
or not. If not, there is no means by which the Court can assess
the
bona
fides
or reliability of the applicant.
[17]
In general, a case founded upon affidavit evidence, not open to test
by cross-examination, is less persuasive.
[18]
The Applicant’s
case for bail
[24]
I now turn to deal with
what I believe to be the gist of the Applicant’s case for bail.
[25]
The Applicant deals in
a single paragraph with the reason why he did not bring a bail
application earlier in the Magistrates’
Court. According
to him, it was only after his legal representatives were provided
with the case dockets that he was advised
about the lack of evidence
against him and the presence of exceptional circumstances justifying
bail in his case. In my view,
this explanation does not excuse
the delay. As was stated above, with reference to the SCA’s
decision in
Mathebula,
an accused has no
right of access to the police docket for purposes of a bail
application. It is accordingly no excuse for
the delay.
An accused may of course wait until the docket is provided before
bringing a bail application but the fact that
the trial is then
around the corner may then count against him.
[26]
It follows that the
Applicant’s choice to wait until he was granted access to the
docket now negatively affects his bail application
because there is
no little more than a month left before his trial starts.
[27]
It was also not
contended on behalf of the Applicant, nor could it, in my view, that
there has been inordinate delay by the State
in bringing to trial an
alleged strong case against the Applicant. The matter is
accordingly distinguishable from
S
v Mooi
[2012] ZASCA
79
(30 May 2012), where this was an important factor.
[28]
Turning to the
Applicant’s personal circumstances. These are set out in
some detail in the founding affidavit:
28.1.
The Applicant is
29 years of age and has 7 biological children. In his
affidavit, he identifies the biological mothers
of 6 of his
children. He claims to contribute to the maintenance of these
6 children as well as 2 others who appear
to be the
children of former girlfriends of his. He claims that due to
the fact that he is in custody, he is no longer able
to support these
children financially and emotionally.
28.2.
The Applicant himself
is unmarried and he has resided with his mother for most of his life.
28.3.
The Applicant is
self-employed and claims that he ran three businesses before he was
taken into custody. The three businesses
are the following:
26.3.1
A taxi business, which
is registered in his mother’s name but which he manages as a
business of his own. This generated
an income of about
R10 000.00 per month.
26.3.2
The buying of cars at
auctions and reselling them at a profit, which generated an income of
about R15 000.00 per month.
26.3.3
The buying and selling
of fish which generated an income of between R3 000.00 –
R5 000.00 per month.
28.4.
The Applicant owns
three immovable properties, one in Delft, one in Belhar and one in
Kleinmond.
[29]
These considerations
are relevant to the question of whether the accused, if he is
released on bail, will attempt to evade his trial,
i.e. s 60(4)(b)
read with s 60(6)(a) and (b). What is of further relevance
is the financial loss which the accused
may suffer owing to his
detention (s 60(9)(d)), and the impact that this may have on his
dependants. However, due to
the delay in bringing the bail
application, the financial impact is to a great extent diminished.
I should add that little
detail is given about the Applicant’s
businesses. Are they licenced and registered for tax, for
instance?
[30]
In
his affidavit, the Applicant complains about the conditions of his
current detention. He claims that he is in a prison
cell with
45 other people even though the cell has a maximum holding
capacity of 30 people. There are only 30 beds
in the
cell. The Applicant further claims that the prison is invested
with rats, fleas and other insects. There is
only one shower
and one basin and both are in a state of disrepair. The State
accepts that the detention facility does experience
rats, fleas and
other insects but contends that the Department of Correctional
Services entered into a contract with a service
provider on pest
control to quarterly conduct fumigation. The State further
admits that the overcrowding situation at Pollsmoor
presents a
challenge and that some inmates are sleeping on the floor. The
facility awaits the delivery of mattresses. A
contractor has
been awarded a tender for the provision of these goods. I do
not believe much can be made of the conditions
of detention in a case
such as the present one. Whilst unsatisfactory, I believe that
the State is correct in its argument
that the conditions of detention
is really a separate issue which needs addressed through the Office
of the Inspecting Judge or
some other process.
[19]
Such conditions cannot in my view constitute exceptional
circumstances justifying the release of the Applicant.
[31]
The Applicant further
claims that while he is in custody, he will not be able to have
proper access to his legal representatives
and, in particular, he
will not be able to properly consult with them in respect of the
numerous and complicated charges levelled
against him. According
to the State, legal visits can be made at any time subject to prior
arrangement and any restriction
on access should be taken up with the
Pollsmoor Correctional Centre Management or the Office of the
Inspecting Judge. The
State doubts the seriousness of the
situation and points out that this issue was never raised at the
pre-trial meetings. Detention
invariably constitutes an
impediment to the preparation of the accused’s defence.
However, in my view, the impact will
be less drastic in a matter such
as the present one. I say this because even though there are
apparently 13 dockets to deal
with, one is not dealing with
complicated financial misconduct and the analysis of copious
documents but rather with a who done
what, where and when kind of
case.
[32]
The
Applicant states that he has no previous convictions and no
outstanding cases. He also states that he is not aware of
any
outstanding warrants for his arrest. He states that even though
he was arrested on two previous occasions, he has never
interfered
with any police investigation, made no attempts to flee and has not
intimidated any witnesses. In my view, the
fact that the
Applicant has no previous convictions, is certainly a factor that
needs to be taken into account, as is also provided
in s 60(5)(e).
But it cannot be concluded that the facts support the submission,
made with reference to
Mooi
,
[20]
that past conduct of the Applicant reveal “
an
inclination contrary to reluctance to stand trial
”.
In the
Mooi
matter, the accused faced previous prosecutions for a variety of
charges in the High Court and the Regional Court. The same
cannot be said in the present matter.
[33]
The Applicant then
deals with the charges against him. I shall revert to this
aspect below. For the moment it suffices
to mention that the
thrust of the Applicant’s attack on the State’s case is
that it is based on the version of an s 204
CPA witness who is a
self-confessed murderer, drug dealer and gunrunner and whose evidence
is allegedly contradictory in material
respects.
[34]
Finally, the
Applicant’s mother deposed to an affidavit to which she annexed
a list of 293 names and surnames as well
as addresses and
contact details of people living in Delft who indicated that they
have no objection to the Applicant being granted
bail. I do not
believe that anything can be made of this petition. To begin
with the State annexed evidence of some
260 members of the
community in Rosendaal signing a petition against the release of the
accused. In my view the community’s
perception, i.e.
whether they will be shocked and outraged if the Applicant is
released (s 60(8A)(a)) or whether it will jeopardise
the public
confidence in the criminal justice system, cannot be determined with
reference to the number of people who sign such
petitions. This
may be relevant in particular cases but the factors listed in
s 60(8A) remain to be decided by the Court
through a value
judgment based on the facts before it.
The State’s
case
[35]
The State’s case
in the present matter can be summarised as follows:
35.1.
The Applicant has not
adduced evidence, as required by s 60(11) of the CPA, which
could satisfy the Court that exceptional
circumstances exist which in
the interests of justice permit his release.
35.2.
The interests of
justice do not permit the release of the Applicant because there is a
likelihood that he will endanger the safety
of the public and the
matter is exceptional in that there is a likelihood that the release
of the Applicant will disturb the public
order or undermine the
public peace or security. Section 60(4) of the CPA does
not permit the release of the Applicant
if one of those two grounds
is established.
35.3.
In any event, in
performing the weighing exercise required by s 60(9), the
interests of justice outweighs the right of the
Applicant to his
personal freedom and the prejudice he is likely to suffer if he was
detained in custody.
[36]
Mr Menigo, who
appeared for the State, contended that there should be a two-stage
analysis: first into the question of
whether the Applicant
adduced evidence regarding exceptional circumstances and thereafter
the weighing exercise. I do not
agree. It seems to me
that the SCA cases referred to above envisage only one enquiry, even
in Schedule 6 cases.
The difference is that in Schedule 6
cases the applicant bears the onus to show that there are exceptional
circumstances,
having regard to all the factors in ss 60(4) –
60(9).
The attack on the
merits of the State’s case
[37]
I think it is fair to
say that the case sought made to be made out by Mr Liddell, who
appeared for the Applicant, is that the
circumstances are exceptional
because even though the charges against the Applicant are extremely
serious, the State’s case
is, on a proper analysis, very weak.
Moreover, whilst the State is trying to depict the Applicant as some
kind of monstrous
gang leader, he is in fact someone who has never
been convicted before, has no “
gang
tattoos
”, and
has never attempted to interfere with an investigation against him.
Accused 5, it was further argued, is
also alleged to be one of
the leaders of the Terrible Josters gang and yet he was released on
bail.
[38]
Much of the bail
hearing, which lasted from 10h00 in the morning until 15h30 in the
afternoon, was spent on an analysis of the State’s
case against
the Applicant. In this regard, it is helpful to break down the
various charges against the Applicant into three
groups:
38.1.
Counts 1 – 2
are for contraventions of s 9(2)(a) and (b) of POCA which
concerns allegations that the Applicant incited,
instigated,
commanded, aided, advised, encouraged or procured other persons to
commit, bring about, perform or participate in a
pattern of criminal
gang activity. This is not a Schedule 6 offence but a
Schedule 5 offence.
38.2.
Counts 9 –
13; counts 18 – 21; counts 26 – 34; counts
35-38; counts 43 – 46; and counts 50
– 54
relate to incitement to commit murder, murder, attempted murder,
possession of firearms and possession of ammunition.
In each of
these six groups of charges, the allegation is, broadly speaking,
that the victim was murdered on the instructions of
the Applicant or
that the Applicant participated in the planning or the execution of
the murder. These are Schedule 6
offences.
38.3.
Count 71 stands
separate to the others as this is a charge of dealing in drugs, which
is also not a Schedule 6 offence.
[39]
An initial question
which arises is whether one should have regard to the strength /
weaknesses of the State’s case in respect
of the Schedule 6
charges or
all
charges. In my view, the merits of all the charges should be
assessed, bearing in mind what was stated above, i.e. that the
accused bears the burden to make out a
prima
facie
case of
weakness in respect of the Schedule 6 offences.
[40]
Against this
background, I turn to discuss the evidence before me on the papers.
Criminal gang activity
[41]
The State relies on
this aspect on the evidence of a s 204 CPA State witness who
claims that he was a highly placed gang member.
After he was
arrested, this individual began giving material information as a
source to the authorities at Goodwood Correctional
Centre. He
was released from prison on bail on 6 November 2015.
Afterwards the charges against him were withdrawn
and he was placed
in a witness protection programme.
[42]
The s 204 witness
estimates that the Terrible Josters has a membership of at least
10 000. According to him the
name of the gang has its
origins in the founding member whose nickname is loosely translated
into English as “
Terrible
”
and also in his membership of the “
Josters
gang
”, active
in Eldorado Park, Gauteng during the 1990s. The s 204
witness further contends that the criminal activities
of the Terrible
Josters are mostly focused on the sale of illegal drugs, namely “
tik
”
and mandrax in certain areas of the Western Cape. The 204
witness claims that he was a close friend of the Applicant.
He
is the brother of one of the other accused in the matter.
[43]
The State annexed
several photographs depicting gang graffiti which is aimed at
confirming the presence of the Terrible Josters
in the areas
mentioned by the s 204 witness. The s 204 witness
also claimed that the Terrible Josters make use
of a certain hand
sign. The State annexed photos to their papers, showing the
hand sign allegedly used by the Terrible Josters.
[44]
The State alleges that
the Applicant lives in an area dominated by the Terrible Josters,
both in Delft and in Kleinmond. The
State further points to a
large number of connections between the Applicant and others
suspected of gang activity and in particular
those who either shot
and killed or were shot and killed as part of gang-related
activities. In this regard, three allegations
stand out.
The first is that the Applicant was in a relationship with one Jayde
Daniels who was assassinated in October 2014.
She was
pregnant at the time and was shot four times in the chest and twice
in the stomach. It is alleged that the murder
was a gang hit
aimed at the Applicant. The second is that the Applicant
himself was shot at 15 Vuurlelie Street on 17 February 2017
in another alleged gang related activity. The third is that a
minibus taxi registered to his mother was found at 28 Vuurlelie
Street containing firearms and drugs.
[45]
The Applicant responded
in a sweeping manner to the detailed allegations made by the State.
He did so despite the fact that,
by the time that he deposed to
the founding affidavit, he had access to the police dockets
containing the evidence against him.
[46]
For instance, the
Applicant claims that Daniels was murdered by her ex-boyfriend, who
was extremely jealous of her moving on.
She had apparently been
attacked by him before. The Applicant does not provide any
further basis for his belief or whether
or not charges were laid
against the ex-boyfriend. He offers no explanation for why he
was shot.
[47]
The Applicant also does
not attempt to deal with the alleged connections between himself and
other alleged gang members. He
simply denies being a member of
any criminal gang and contends that hand gestures are not, in and of
themselves, indicative of
so-called gang association. In this
regard he annexed photographs to the founding affidavit which show a
soccer player using
a similar hand sign to the one allegedly used by
the Terrible Josters.
[48]
In light of the paucity
of evidence produced by the Applicant, I cannot conclude that the
State’s case in respect of counts 1
– 2 is weak.
On the contrary, as things stand, it seems to me that the State has a
fairly strong case on these counts.
Even though there is no
onus on the Applicant in respect of these charges to show that the
State’s case is frail, the probabilities
on the papers favour
the State on counts 1 – 2.
The premeditated
murder and related charges
[49]
These are the
Schedule 6 offences.
[50]
The
first set of charges relate to the murder of Levert Seekoei
(“
Seekoei
”).
[21]
The State alleges that the Applicant directed Accused 2 to
commit the murder. The s 204 witness himself claims
that
he was instructed by Accused 5 to partake in this murder.
According to the s 204 witness, he shot Seekoei
in the
chest and Accused 2 then emptied the contents of his magazine
into the deceased. The Applicant criticises the
State’s
case because an independent witness initially implicated two other
persons, namely Tyrone Constable (“
Constable
”)
and Michael Solomon (“
Solomon
”)
in the murder.
[22]
The
State however contends that that witness now says that he was coerced
by two police officials to falsely implicate Constable
and Solomon.
These allegations are part of a separate investigation into possible
police corruption.
[51]
The
second set of charges relate to the murder of Brandon Dickson
(“
Dickson
”).
[23]
In respect of this murder, the s 204 witness claims that the
Applicant instructed Accused 2 to collect a firearm
from a
hiding place which was then handed to Accused 9 to kill
Dickson. This was done as the Applicant and others believed
that Dickson shot and killed one Hilton Adriaanse (“
Adriaanse
”).
In respect of these charges, the Applicant contends that the s 204
witness initially claimed that a Mr Ishmaeel
Ockerts (“
Ockerts
”)
was present when the murder was planned. However, it later came
to light that Ockerts was incarcerated at the time
of the alleged
planning of the murder. This was meant to show that the s 204
witness’ version in respect of the
Dickson murder is
unreliable. Although relevant, the mistake does not relate to
the crux of the account of the s 204
witness on these charges.
The mistake appears to relate only to the allegation that Ockerts was
present. According
to the State, the s 204 witness may
have been wrong regarding his presence, but this is not material.
[52]
The
third set of charges relate to the murder of Leon Davids
(“
Davids
”).
[24]
The s 204 witness claims that Davids was initially targeted by
Accused 5 but when the latter’s people did
not deliver the
Applicant at a meeting indicated that “
they
should watch what happens
”.
Accused 2 and Accused 8, driven by Accused 4, then
committed the murder and reported back to the Applicant
who then
remarked to the s 204 witness that “
his
people never miss
”.
In respect of this murder, the Applicant denies any knowledge of the
alleged death of Davids. He further contends
that the s 204
witness was not present at the alleged murder and that his version is
therefore hearsay evidence which will
not be admissible at the
trial. Hearsay evidence is however admissible in a bail
application, although it will carry less
weight than if the person
having personal knowledge of the facts were themselves to
testify.
[25]
[53]
The
fourth set of charges concern the murder of Vernon Bothes
(“
Bothes
”).
[26]
In respect of this murder, it is alleged by the State that Nizaam
Meniers (“
Meniers
”)
and Efraim Presence (“
Presence
”)
pretended to be buying drugs from the deceased but then killed him.
One of the deceased’s friends observed
a grey Audi motor
vehicle speeding from the scene. A police van pulled up next to
the friend and then gave chase to the Audi.
The Audi stopped
and two persons jumped out of the rear passenger seats and ran away.
One of these was Meniers, who was eventually
arrested. The Audi
itself was pulled over and Accused 2 was found to be driving
with the Applicant in the passenger
seat. A fourth suspect was
eventually arrested and identified as Presence. In respect of
this murder, the Applicants
points out the charges against him were
initially withdrawn on the basis of a lack of evidence against him.
The State however
claims that at the stage of his arrest there was no
positive residue test and the firearm used was not yet found.
The Applicant’s
matter was then not placed on the Court roll on
the instruction of a prosecutor. This was however subject to
the condition
that if further evidence was obtained, the Applicant
would be added to the case. The matter was eventually
reconsidered by
the Director of Public Prosecutions (“
DPP
”)
who reviewed the decision of the prosecutor and directed that charges
against the Applicant had to be included. It
is noteworthy
that, in respect of this murder, the Applicant has not attempted to
provide an explanation for why he was found in
the passenger seat of
the getaway vehicle.
[54]
The
fifth set of charges relate to the murder is of Aubrey Johannes
(“
Johannes
”).
[27]
In respect of this murder, the State alleges that the s 204
witness was told by Accused 5 that he and the Applicant
and
others were made to kill Johannes because the “
Sexy
Boys
”
had used Johannes’ vehicle to transport certain assassins
during another murder. Parts of the s 204 witness’
account of the events were confirmed by CCTV stills and a bystander,
who saw the person believed to be the shooter get into a vehicle
which partially matches the appearance of the Applicant’s
vehicle. On this murder, the Applicant alleges that the
witnesses identified different cars alleged involved in the incident.
One identified a grey Ford Focus whilst the s 204 witness
identified a white VW Golf. I refer to what I stated above
regarding this kind of contradiction between witness statements.
It can hardly be considered to be destructive of the State’s
entire case at the bail stage. The State also pointed
out that
the important part of the s 204 witness statement is the “
green
monster
”
sticker on the car that he identified.
[55]
The
sixth set of charges relate to the murder of Lorenzo de Kock (“
De
Kock
”).
[28]
The State alleges that the s 204 witness was at the home of the
Applicant and present when the latter told Accused 7
and 8 that
he had a suspicion that a school boy who was a friend of Accused 7
was spying on behalf of the “
Dixie
Boys
”
gang and indicated that this boy needed to be killed. Accused 7
and 8 then arrived back a short while later and
confirmed that the
deed was done. On this set of charges, the Applicant states
that he was arrested some three years after
the incidents are alleged
to have occurred and that he was arrested solely on the strength of
the s 204 witness’ account.
He denies that he
planned to or murdered De Kock.
[56]
Having assessed the
above, it is my view that the Applicant fell substantially short of
establishing that the State’s case
is weak in respect of the
Schedule 6 charges. Yet again, his affidavits lack
specificity. He does not deal, for instance,
with the fact that
he was found sitting in the passenger seat of a getaway car. He
further elected not to subject himself
to cross-examination.
This also weakens his case, as explained above.
[57]
The
Applicant’s main points appear to be that the s 204
witness deposed to the affidavits long after the events took
place
and that he lacks credibility. Such a conclusion cannot in my view be
drawn at this stage. As with the Applicant’s
case, one has only
seen the State’s case on paper. The Applicant chose to
come to Court on paper. I can hardly
make a credibility finding
against the s 204 witness in motion proceedings; or find that
his recollection of the events is
unreliable even though I only have
written statements before me. I also agree with the State that
it must be borne in mind
that in instances of gang-related violence,
evidence against leadership figures is unlikely to come from anybody
but a member.
If such cases are considered weak merely because
the s 204 witness was also a participant, then these crimes will
never
be prosecuted. It is also so, as contended by the State,
that there is no absolute rule that requires that evidence of an
accomplice must be corroborated. The Court should seek some
safeguard reducing the risk of the wrong person being convicted
but
this need not be corroboration.
[29]
The drug dealing
charge (count 71)
[58]
This charge relates to
events which took place on 14 December 2016. The
State alleges that on this day a member
of the DPCI was on a personal
errand when he received information that there was a large shipment
of drugs being packaged at 44 Drakenstein
Road, Durbanville for
distribution to the community. This is the address where the
Applicant’s mother lives.
The officer went to the address
and identified himself to a lady visible through a window. He
then observed objects being
thrown over a wall. He forcibly
entered the house which was duly searched. At various places in
the house and on the
neighbour’s premises, packaged and loose
mandrax tablets were found along with R30 000.00 cash. The
Applicant
and Accused 2 were amongst those present at the
premises and arrested. The Applicant and Accused 2 were
positively
linked to the packaging of drugs by fingerprints.
[59]
In respect of this
charge, the Applicant contends that he was released and the charges
were withdrawn. The State, however,
points out that the charges
were not withdrawn due to a lack of evidence but in order that the
counts be added to the charges of
the present indictment. This
was done because the DPP was of the view that the drug dealing forms
part of the pattern of
criminal gang activity.
[60]
The Applicant makes
much of the fact that he was released at a stage where the s 204
witness statements were already available
to the State. It
however was contended on behalf of the State, that considerable
cross-checking and investigations followed
after the s 204
witness statements were finalised. The veracity of the
statements made by the s 204 witness had
to be verified.
The investigating officer also had to deal with some 23 other
accused. It is accordingly not a case
where the State suddenly
changed its mind about the need to detain the Applicant but rather
one where the State did not have its
ducks in a row at the time when
the drug arrest took place.
[61]
The same applies to the
Applicant’s argument that the State only arrested the Applicant
approximately one year after the last
affidavit was deposed to by the
s 204 witness. An arrest could not be effected immediately
for reasons already described.
[62]
What is more important,
at this stage, is that Applicant has made no attempt to explain why
his fingerprints were found on the packaging.
In these
circumstances he can hardly contend that the State’s case is
weak.
[63]
The Applicant’s
counsel referred to
Dlamini
,
at para 100, where it is stated that it would be proper for an
arrestee when testifying in support of bail to refuse to answer
certain questions. This part of
Dlamini
however relates to prosecutors being allowed to abuse the right to
cross-examine an accused, especially when the bail application
is not
brought on the basis that the State’s case is weak.
Dlamini
,
read as a whole, is all about the exercise of choices: when a
bail applicant elects to motivate his bail application almost
solely
on the basis of the weakness of the State’s case then he would
be required to deal with pertinent aspects thereof.
I
accordingly do not find the Applicant’s argument persuasive.
Conclusion
[64]
For all these reasons,
I do not believe that the State’s case on the charges is weak
to the extent that it constitutes exceptional
circumstances within
the meaning of s 60(11) of the CPA. It must be borne in
mind that s 60(11) requires the applicant
for bail to satisfy
the Court that exceptional circumstances exist and he must do so by
“
adducing
evidence
”.
This means that there was a burden on the Applicant in the present
matter to adduce evidence to demonstrate that
the State’s case
is weak. In my view the Applicant has failed to do so.
The State’s case was criticised
in sweeping terms or in
immaterial respects whilst pertinent evidence against the Applicant
was not dealt with.
Weighing the
interests of justice against the right to personal freedom
[65]
The weakness in the
State’s case was the main argument advanced on behalf of the
Applicant. However, as explained above, the
Court must nevertheless
have regard to the totality of relevant factors in order to determine
whether there are exceptional circumstances
which justify the release
of the Applicant.
[66]
In the present matter,
the State relies on s 60(4) read with s 60(5) as well as
s 60(4) read with s 60(8A) as
the reasons why bail is not
in the interests of justice.
[67]
I deal with the
relevant parts in turn.
[68]
Section 60(4)(a)
(the safety of the public) is relied upon by the State because of the
degree of violence towards others implicit
in the charges levelled
against the Applicant. This is undoubtedly the case. The
offences were committed, at least
in some instances, in the presence
of and without regard for innocent bystanders. Multiple shots
were fired as part of the
crimes and bystanders were in fact hit by
some of these.
[69]
It
is further alleged, on behalf of the State, that the Applicant, as a
member of a criminal gang, is likely to continue hostilities
with
opposing gangs if released on bail. Gang related shootings is
an immense problem for communities in the Cape Flats.
It
appears, further, that since the incarceration of the Terrible
Josters criminal gang members, there has been a de-escalation
of gang
violence in these areas.
[30]
One can also take into account, as suggested by the State, that when
members of the Terrible Josters appeared in the Bellville
Court in
August 2017, they allegedly assaulted a member of an opposing
gang, which then lead to that gang opening fire on
the group, leaving
bullet holes in the Bellville Court glass entrance. Some eight
cartridges were later collected at the
entrance of the Court.
[70]
As
far as s 60(4)(e) is concerned (the release of the accused will
undermine public peace or security), the State alleges that
communities continue to express shock and outrage at the constant
gang related violence in their areas; and that the safety of
the
Applicant might be jeopardised by his release given the surge in
assassination attempts on prominent gang leaders and particularly
those of the Terrible Josters (some 11 killings are listed as
well as the shooting and injury of the Applicant himself and
Accused 7). Against this background, the State contends
that the circumstances are exceptional,
[31]
as is evidenced by the constant request for the deployment of the
defence force to curb gang violence. The State contends
that
the confidence of the community and the criminal justice system is
already at an all-time low and there is a belief that accused
arrested for gang related crimes are too easily released on bail.
[71]
I believe that the
State has also made out a case for exceptional circumstances under
s 60(4)(e) and that it is not within
the interests of justice to
grant bail. The fact of the matter is that, despite the lack of
previous convictions, the serious
problem with gang-violence on the
Cape Flats, to which the Applicant has been linked, outweighs the
right of the Applicant in the
present instance.
[72]
This is particularly so
because the Applicant’s trial is about to commence on
6 May 2019. This is little more
than a month from
now. As stated above, the Applicant was not entitled to the
police dockets in order to substantiate his
bail application and he
carries the blame for the delay. In any event, regardless of
whose fault it is that the bail application
was not considered
earlier, it remains a factor that the Applicant is only to be
detained for approximately one more month until
he can prove his
innocence in a criminal trial.
[73]
Reliance was sought to
be placed on the fact that Accused 5 was released on bail. I do
not believe that I can take this fact
into account. The record
of those bail proceedings were not placed before me nor do I believe
that such a record would be
relevant. Each case must be
determined on its own facts.
[74]
In all the
circumstances, I believe that the factors advanced by the State weigh
more heavily than the personal freedom of the Applicant
in the
present matter and the prejudice he is likely to suffer due to the
continuation of custody pending the trial.
[75]
In the circumstances
the application for bail is dismissed.
H J DE WAAL AJ
Acting Judge
of the High Court
Cape Town
29 March 2019
APPEARANCES
Applicant’s
counsel: Mr R Liddell
Applicant’s
attorneys: Liddell Weeber & Van der Merwe, Wynberg
The State’s
counsel: Mr M Menigo
The State’s
attorneys: Director of Public Prosecutions, Western Cape
[1]
S
v Mabena
2007 (1) SACR 482
(SCA) para 4
[2]
Mabena
para 4
[3]
Mabena
para
5
[4]
Dlamini
para 77
[5]
Mabena
para 6
[6]
S
v Rudolph
2010
(1) SACR 262
(SCA) para 9
[7]
S
v Bruintjies
2003 (2) SACR 575
(SCA) para 6
[8]
Dlamini
para 61
[9]
Mabena
para 7
[10]
Mabena
para 7
[11]
Mabena
para 7
[12]
S
v Botha
2002 (1) SACR 222
(SCA) para 21;
S
v Viljoen
2002 (2) SACR 550
(SCA) paras 14-15
[13]
Mathebula
para 12
[14]
Mathebula
para 12
[15]
Mathebula
para 12
[16]
See
S
v Scott-Crossley
2007 (2) SACR 470
(SCA) para 7
[17]
Bruintjies
para 7
[18]
S
v Mathebula
2010 (1) SACR 55
(SCA) para 11
[19]
See
Panayiotou
v S
(CA&R 06 /2015) [2015] ZAECGHC 73 (28 July 2015) (my
underlining):
“
[40]
The appellant argued that the magistrate had brushed aside the
deplorable conditions in St Albans and ignored the judgment
of
Roberson J in Jacobs. The argument is without merit. As already
indicated it is clear from a reading of the magistrate’s
judgment that she considered the principle which was accepted in
Jacobs and found that the conditions of detention serve as a
factor
to be weighed in the scales to determine whether exceptional
circumstances exist. The fact that the magistrate did not
cite the
judgment is of no consequence.
Jacobs
in any event does not constitute authority for the proposition that
deplorable conditions of detention necessarily favour
an accused
persons release on bail. The approach which was set out in S v Van
Wyk
2005 (1) SACR 41
(SCA), namely that release on bail is not the
remedy for the failures of correctional services to ensure detention
in conditions
of humanity
.”
[20]
Mooi
(
supra
)
para 12
[21]
Counts
9 – 13
[22]
I
was referred by the Applicant’s counsel to S v
Scott-Crossley
2008
(1) SACR 223
(SCA) para 18 relating to contradictions.
The Applicant’s counsel further submitted that the fact that
there
was a murder cannot be used as corroboration for the version
of the s 204 witness. I do not believe that these
dicta
are relevant at this stage.
Scott-Crossley
dealt with evidence at trial. I do not believe that it is
necessary or appropriate to delve into the detail at this point.
Even if there is a contradiction, I fail to see on what basis I can
conclude that this will be fatal to the State’s case
at trial.
[23]
Counts 18
– 21
[24]
Counts
26 – 34
[25]
S
v Tshabalala
1998
(2) SACR 259
(C) at 265f;
S
v Yanta
2000 (1) SACR 237
(Tk) at 246
[26]
Counts
35-38
[27]
Counts
43-46
[28]
Counts
50-54
[29]
S
v Mhlabathi
1968 (2) SA 48 (A)
[30]
The
Constitutional Court remarked as follows in
Dlamini:
“
[55]
…Experience has shown that organised community violence, be
it instigated by quasi-political motives or by territorial
battles
for control of communities for commercial purposes, does subside
while ringleaders are in custody. Their arrest and detention
on
serious charges does instil confidence in the criminal
justice system and does tend to settle disquiet, whether
the
arrestees are warlords or druglords. In my view, open and democratic
societies based on human dignity, equality and freedom,
after
weighing the factors enumerated in paras (a)-(e) of s 36(1) of
the Constitution, would find ss 60(4)(e) and (8A)
reasonable
and justifiable in the prevailing climate in our country.”
[31]
As
was recognised in
S
v Miselo
2002 (1) SACR 649
(C)