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[2019] ZAWCHC 100
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Rohde v S (483/2019) [2019] ZAWCHC 100; 2019 (2) SACR 422 (WCC); [2019] 4 All SA 310 (WCC) (15 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
SCA
Case No.:
483/2019
WCHC
Case No.:
SS43/2017
In
the matter between:
MR
JASON THOMAS
ROHDE
Applicant
and
THE
STATE
Respondent
JUDGMENT: APPLICATION
FOR BAIL PENDING APPEAL
DELIVERED ON 15 AUGUST
2019
SALIE-HLOPHE,
J
:
INTRODUCTION:
[1]
This is an application brought by the applicant, Mr. Jason Thomas
Rohde, for bail pending the hearing of his appeal against
his
convictions and sentences. The applicant was convicted on 08
th
November 2018 of the murder of his wife, Mrs. Susan Rohde, and
defeating/obstruction the course of justice by covering up the murder
to have it look as if she had committed suicide. He was
sentenced on 27
th
February 2019 to an effective term of direct imprisonment of 20
years, that being 18 years in respect of the conviction or murder
and
5 years for defeating/obstruction the course of justice. Three
of the five years were ordered to run concurrently with
the sentence
of 18 years. Mr. Rohde’s bail pending finalisation of the
trial, was withdrawn upon conviction and he
had been incarcerated
since then.
[2]
Two respective bail applications were launched by him for
re-instatement of bail pending finalisation of his sentence.
The first application was made on the day of his conviction.
His counsel, Mr Van der Spuy, argued then that he does not pose
a
flight risk in that he had complied with his bail conditions; that he
has strong family ties and immovable property in Plettenberg
Bay and
that all his three passports are in the possession of the police.
The application was dismissed in that the conviction
of guilt meant
that the accused is no longer presumed innocent, that the nature and
gravity of the conviction were serious and
that he faced a minimum
sentence of incarceration. These facts, inter alia, in
the view of the Court, militated against
the granting of or extension
of bail. In the premise, the Court found that the interests of
justice required the incarceration
of the accused.
[3]
The second application for bail were brought on the grounds that: the
accused does not pose a flight risk in that he was co-operative
with
police and compliant of his bail conditions pending finalisation of
the trial; that his passports were in the custody of the
police; that
his asset base had been decimated by the consequences of the criminal
proceedings against him; that his further incarceration
would
compromise his property and business interests and his ability to
save his dire consequential financial interests and lastly
that his
need to care for his children both financially and emotionally
required his release from custody. It was also argued
that the
intervening December recess period amounted to a new fact upon which
bail ought to be considered as the sentencing proceedings
would only
recommence in the new term of earlier this year.
[4]
The Court considered the facts placed before it in support of
bail,
[1]
however, dismissed the
application in that the interest of justice in the circumstances does
not warrant the re-instatement or
granting of bail.
[5]
A third application for bail had been launched during July 2019, on
the basis that on the 02
nd
of July 2019 the Supreme Court of Appeal granted the accused leave to
appeal against his convictions and sentences. Leave
to appeal
against his convictions and sentences were dismissed by the Court a
quo on 16 April 2019 on the ground that there are
no reasonable
prospects of success that another Court would come to a different
conclusion on the facts and circumstances of the
matter.
[6]
The argument on behalf of Mr. Rohde in this third application for
bail is that, arising out of his conviction and incarceration,
his
circumstances have changed and that the facts pointed out in his
founding and supplementary affidavits would justify a decision
granting bail pending hearing of his appeal in the interests of
justice.
[2]
[7]
The State opposed the application on the basis that it would be
contrary to the administration of justice to release the applicant
on
bail pending his appeal and that such ‘
lenience’
would bring the administration of justice into disrepute.
[3]
The convictions, it submitted, are very serious and that the extent
of the seriousness thereof together with the lengthy
sentences must
be taken into account in the context of leave having been granted by
the Supreme Court of Appeal. It was further
submitted that the
hardships, financial impact and consequences for the applicant
stemming from his convictions and incarceration
could not be
construed as new facts.
[8]
At the hearing of this matter, Mr. King SC, who appeared for the
applicant, confirmed upon enquiry from the Court that all facts
which
the applicant sought to place before the Court had so been
placed.
[4]
Furthermore he
confirmed that the applicant exercised his right to supplement his
papers in the form of supplementary affidavits
having been granted
leave to do so in the days prior to the hearing of the matter.
Mr. Rohde filed a supplementary affidavit
dated 23 July 2019 and his
attorney, Mr. Anthony Louis Mostert, filed a further affidavit dated
5
th
August 2019 addressing events which had transpired subsequent to the
launch of this application on 3 July 2019.
[9]
Mr. King SC argued that the Supreme Court of Appeal granting leave to
appeal as petitioned, means that a higher court came to
the
conclusion that there is a reasonable prospect of success or a
realistic chance of success on appeal. The argument follows
that were the applicant ultimately to be successful on appeal, it
would mean that he would at that stage had lost a lengthy period
of
time of his life and freedom, his ability to have salvaged his
business, to augment his financial circumstances, to have provided
for his children and that he would have had to endure the hardship
and torment of life in prison. Counsel relied strongly
on
the case of
S
v Essop
2018 (1) SACR 99
which dealt with bail pending appeal and the applicable principles
with particular reference to
Sections 60(4)
and (5) of the
Criminal
Procedure Act 51 of 1977
[5]
.
I will deal with that later in this judgment.
[10] Mr. van Niekerk, who
appeared for the Respondent, submitted that the petition before the
SCA had been done on the basis of
the Notice of Appeal setting out
the grounds of appeal, an opposing notice by the State and the
judgment by the Court a quo. The
record or transcript of the
proceedings were not before the petitioning Judges and given the fact
that the judgment developed various
aspects of law, could reasonably
suggest that the SCA would want to consider and pronounce on the
legal principles so established
by the judgment as a higher court.
It was further argued by the State that the mere fact that leave to
appeal is granted
does not entitle a convicted prisoner to be
released on bail.
APPLICABLE
LAW
:
[11]
Section 321
[6]
of the CPA
provides that the Court from which the appeal originates may order
that the appellant be released on bail. This
provision
prohibits the suspension of a sentence imposed by a superior court by
reason of any appeal against a conviction unless
the trial court
thinks it fit to order the sentenced accused’s release on
bail.
[7]
[12]
Pre-trial release allows a man
accused
[8]
of crime to keep the fabric of his life intact, to maintain
employment and family ties in the event he is acquitted or given a
suspended sentence or probation. It spares his family the
hardship and indignity of welfare and enforced separation.
It
permits the accused to take an active part in planning his defence
with his counsel, locating witnesses, proving his capability
of
staying free in the community without getting into trouble.
This would include earning an income to maintain his financial
needs
as well as funding his legal expenses incurred in consequence of the
trial.
[9]
Underlying this
important rationale is the fact that the accused enjoys the
fundamental right of being presumed innocent.
[13]
In the present case however, Mr. Rohde had been convicted as charged
upon finalisation of his trial and no longer enjoys the
presumption
of innocence. That he had been granted leave to appeal his
convictions does not vitiate the finding of guilt
nor does it revert
his presumption of innocence.
[14]
In
Essop
it was accepted that the presumption of innocence no longer applies
where a convicted and sentenced person applies for bail pending
finalisation of his appeal against sentence. However, the
inapplicability of the presumption of innocence is only one factor
to
be considered in assessing all the circumstances relevant to the
issue whether bail pending appeal is justified. In that
matter,
bail was granted, subject to strict conditions, a bail amount higher
than initially fixed (pending trial) was considered
in the
circumstances of the case to be a fair and sufficient incentive to
comply with bail pending the finalisation of the appeal.
The
finding therein to grant bail was however in substantially different
circumstances. The Court was of the view that the
sentencing
magistrate made a patent error in labouring under the impression that
the appellant was convicted of committing an offence
in terms of the
sexual offences act
[10]
and/or
sexual assault of the complainant, which carried a more severe
punishment.
[15]
Essop
is in my view distinguishable from this case for a number of
reasons. The application in that matter was not opposed, the
State did not lead any evidence, whether oral or by affidavit, to
oppose the application. The accused had pleaded guilty,
the
only aspect on appeal was that of sentence which was argued to be so
severe and arrived at in error of the applicable sentencing
regime,
that the appeal court would most certainly interfere with same.
The State conceded as much and the Court hearing
the application for
the applicant to be released on bail pending his appeal, accepted
that the applicant was not a flight risk,
complied with bail
conditions pending trial and that there were reasonable prospects
that the appeal court will interfere with
the sentence imposed on the
appellant.
[16]
In
S v
Scott-Crossley
2007 (2) SACR 470
(SCA)
the Court held that the prospects of success do not in itself amount
to exceptional circumstances as envisaged by the Act.
The Court
had to consider all the relevant factors and determine whether
individually and cumulatively they constitute exceptional
circumstances which would justify his release. In the matter
before us, the Court is required to look at the totality of
the facts
and circumstances before it in determining whether the
interests
of justice
require
Mr. Rohde’s further detention or differently put whether the
interests of justice warrant his release on bail pending
his appeal.
[17]
The circumstances contemplated in
Section 60(4)
and (5) provide that
the interests of justice do not permit the release from detention of
an accused during trial and
preceding
conviction
,
where one or more of a number of grounds are established.
[11]
For the applicant it was argued that none of those circumstances are
invoked in the matter before us. However, in this
case, Mr.
Rohde had already been
convicted
and sentenced accordingly.
[18]
Furthermore, in any event, a twenty-year (20) year sentence is
undoubtedly a lengthy period of incarceration. In my view,
that
the State did not present evidence that Mr. Rohde is a flight risk is
not dispositive of that possibility. The onus
rests on the
applicant to prove that it would be in the interests of justice to
release him on bail, inter alia, that he would
not abscond.
[19]
Flight is a possible, albeit unlawful, course of action to follow for
a person facing a 20 year sentence. This need not necessarily
be
alleged or proven by the State. In each case the Court would be
in a position to make a risk assessment of the possibilities
of
flight by taking into account the seriousness of the crimes
committed, the length of the imposed sentences and other relevant
factors. Indeed Mr. King SC conceded as much in argument.
However, he submitted that the risk of Mr. Rohde absconding
is
reduced by the fact that when the SCA granted leave to appeal it was
on the basis that he has a reasonable chance of success
to be
“
acquitted
and continue with his life”
.
The argument thus follows that the risk of flight would be countered
by the fact that he knows he has a reasonable chance
of success.
[12]
[20] In my view the fact
that a convicted prisoner had been granted leave to appeal does not
necessarily dispose of the question
as to whether his is a flight
risk. Human nature would make for different mind sets in
similar circumstances. The Court
is then left to make a
judgment call as to whether there is a reasonable apprehension of
flight risk. A reasonable prospect
of success on appeal is not
mutually exclusive to the reasonable possibility of failure on
appeal. Both possibilities co-exist.
The one does not
exclude the other. Similarly, both options, to run or stay, remain
open to a convicted accused in the position
of Mr. Rohde. It is
not a case of mathematical or scientific exclusion of the one to the
other. Furthermore, it is
not argued that the State’s
case was subject to serious doubt or that confirmation of the
conviction is not a remote possibility.
AUSTRALIAN
AND UNITED KINGDOM PASSPORTS AS WELL AS OVERSEAS BANK ACCOUNT:
[21]
In determining whether to grant Mr. Rohde bail, this Court must take
into account the evidence lead in the previous bail applications,
including that before the magistrate’s court after his arrest.
Mr. Rohde, in addition to having a South African passport,
also has
Australian and United Kingdom passports. Both the bail court
(Stellenbosch Magistrate’s Court) and the trial
court heard
evidence regarding the dual South African/Australian citizenship of
Mr. Rohde as well as his British citizenship as
his country of
birth. Citizenship means the position or status of being a
citizen of a particular country and the right of
entry and stay in
that country. Citizenship does not extinguish with the
expiration of a passport nor do you lose your rights
of citizenship
of a country as a result of not having a passport for that country.
The fact that passports are misplaced,
lost or in the custody of
another, in this case the South African Police, does not mean that
the holder of the right of citizenship
is disentitled from the
relationship between him and the state of which he holds
citizenship. Citizenship implies the
status of freedom in
a country including the rights of passage, stay and the protection of
that country.
[13]
[22]
A passport is a document issued by a national government for
international travel and it certifies the identity and nationality
of
the holder. A lost, misplaced, expired passport can be replaced
by way of application.
[14]
British passport applications, since 2013, are no longer processed in
South Africa and in fact are done in the United Kingdom.
[15]
The fact that Mr. Rohde’s passports are in police custody and
(some) expired, does not exclude the possibility of him
obtaining
other passports through other means.
[23]
This Court cannot turn a blind eye to the fact that Mr. Rohde holds
these rights of passage and stay to other countries and
that
passports issued by those countries to its citizens are not within
the control of South Africa.
[24]
Submissions were made in the Stellenbosch Magistrate’s Court
that Mr. Rohde left South Africa in 2015 to attend the England
World
Rugby Cup with an expired South African passport.
[16]
Whilst this was brought to his attention by officials as travellers
are not allowed to exit the country and travel internationally
with
an expired passport, he nonetheless managed to leave and returned to
South Africa by using his Australian passport.
This in my view
illustrates a comfortable ability on the part of the applicant to
stay in travel mode, vacillating between passports
of different
countries, notwithstanding it having been expired.
[17]
[25]
In the bail application before the lower Court, Mr. Rohde declared
the value of his estate, which included an active bank account
in
Australia with an approximate balance of AUD$14 000,00 and an
investment portfolio purchased on an overseas platform, National
Australia Bank.
[18]
In
S
v Petersen
2008 (2) SACR 355
,
the Full Bench of this Division, took that fact into account when it
dismissed Mrs. Najwa Petersen’s bail appeal.
She was at
the time accused of murdering her husband and well known performing
artist, Mr. Taliep Petersen. She had subsequently
been
convicted of his murder.
[19]
[26] It was submitted for
the State in the bail application in the lower court that given the
nature and seriousness of the charges,
the State can never say that
Mr. Rohde is not a flight risk. Clearly, in circumstances where
Mr. Rohde had subsequently been
convicted as charged, the test for
bail cannot be lighter, nor the risk of flight.
COMPLIANCE
WITH CONDITIONS OF BAIL DURING TRIAL:
[27]
The applicant set out in his affidavit that his full compliance with
his conditions of his bail during trial must weigh in
his favour in
the present bid for bail. This submission was also made during
both his previous bail applications, after conviction,
on 8 November
and 6 December 2018 respectively which submission the Court rejected
as not being altogether correct.
[28]
The issue relates to Mr. Rohde’s absence from Court with the
recommencement of trial after the December / January recess.
On
5
th
December 2017 the trial Court adjourned for a period of two (2)
months and postponed the trial to recommence on 5 February 2018.
Application was brought by Mr. Rohde to relax and amend his bail
conditions in order to allow him to spend the holiday and Christmas
period in Plettenberg Bay. The Court indulged his request and
amended the bail conditions accordingly. Mr. Rohde’s
bail
was extended on the conditions as amended and he was warned to appear
at 09h30 on the 5
th
of February 2018 and to remain in attendance until further directed
by the Court. With the recommencement of the trial on
5
February 2018, Mr. Rohde was absent. Mr Mihalik, then lead
counsel for Mr. Rohde, indicated that he had been hospitalised,
that
he is ill and sought a seven day postponement.
[29]
No medical certificate was placed on record to confirm that Mr. Rohde
had been unfit to attend Court and the proceedings stood
down until
12h30 that day for Mr. Rohde to attend Court, facilitated by the Head
of the Court Orderlies, Warrant Officer Dirks,
and the investigating
officer. Mr. Rohde did not return to Court later that day. When
the proceedings recommenced the investigating
officer confirmed under
oath that he attended at Crescent Clinic and informed Dr. Stoloff at
the clinic of the purpose of their
attendance as instructed by the
Court. Dr. Stoloff requested a written Court Order. Mr. Rohde
came down to them at reception
upon the request of SAPS and they met
in a separate room. Mr. Rohde emulated Dr. Stoloff’s
request for a Court Order
and refused to return to Court as per their
advices.
[20]
[30]
When the proceedings commenced later that day, Mr. Mihalik sought to
hand up a letter from Dr. Stoloff, addressed to the attorney
of
record, confirming that Mr. Rohde was in hospital for treatment of a
severe major depressive episode. Mr. Rohde was admitted
to
hospital on Friday, the 2
nd
of February after an assessment on the 31
st
of January 2018. The letter further indicated that Mr. Rohde
was “
unwilling”
(not able) to return to Court with the SAPS as no Court Order was
produced. Furthermore, Dr.Stoloff indicated in his letter
that
Mr. Rohde required hospitalization and treatment for a minimum of six
(6) weeks in order to strengthen himself for the continuation
of the
legal process.
[31]
The manner in which Mr. Rohde’s absence from Court was
addressed was cause for the Court’s concern and apprehension
increased with the unfolding of events during the enquiry which
followed. Two sick notes were shown to me in chambers, however,
it was not placed on record in Court, the contents of which Mr.
Mihalik claimed to be confidential. The contents of the (undisclosed)
sick notes in turn expected of the Court to postpone the matter for 6
weeks as Mr. Rohde would be booked off until 19 March 2018
to
“
strengthen
himself for the continuation of the legal process”
subject
to a “
review
of [his] mental state after this period”
.
This would result practically in the trial resuming in the following
term, or sometime thereafter given the reservation
of his doctor to
review his mental state. Mr. Rohde’s illness arose at the
end of a two month holiday period, he was
hospitalised on the eve of
the scheduled resumption of the trial on very serious charges and
there was no candour in that regard
before the Court.
[21]
Shrouded in mystery and other alarming factors,
[22]
it could not be said that the Court could be
satisfied
and justified to postpone the matter in those circumstances.
[32]
Furthermore, the Court expressed concern whether Mr. Rohde would be
able to comply with his bail conditions in the period during
which
the matter was sought to be postponed. Mr. Rohde’s bail
conditions included having to sign at a police station
on specific
days of the week, included prohibition from international ports of
entry and exit as well as a number of other requirements.
[23]
When the Court arranged and called for Dr. Stoloff as a witness in
the course of conducting a Section 67 enquiry into Mr.
Rohde’s
absence from Court, counsel for Mr. Rohde objected thereto.
[24]
[33]
This was a classic cat and mouse game, the defence team together with
Mr. Rohde sought to play hide and seek with the Court.
A
warrant of arrest for Mr. Rohde was then authorised and the
proceedings commenced the following day. Mr. Rohde was brought
before the Court.
[34]
In the present bail application, Mr. Rohde set out in his affidavit
at paragraph 124
[25]
that
despite Dr. Stoloff’s personal attendance at Court and his
availability to answer any queries that the Court might have,
the
Court issued an order for his arrest. This is also set out as a
ground of appeal. This averment is clearly not
correct and not
born out by the record.
[35]
When the Section 67(3) enquiry eventually proceeded, Dr.Stoloff
indicated that Mr. Rohde presented a risk to self, that he
had
stopped taking his prescribed medication two months earlier
[26]
and that he also expressed doubt that his patient was able to
properly follow the legal proceedings and give instructions to his
legal representatives. He indicated further that the severe
major depression suffered by Mr. Rohde is a mental disorder,
however,
temporary. He also confirmed that Mr. Rohde would be unable to
attend court for the duration of his treatment, a
minimum of six (6)
weeks.
[27]
[36]
The Court indicated that Dr.Stoloff’s evidence appears to
invoke the provisions of Section 77(1)
[28]
read with Section 79
[29]
, for
Mr. Rohde to be referred for mental observation in terms of the
mandatory provisions of the CPA. The matter was postponed
for
14 days, until 21 February 2018, subject to,
inter
alia
,
Mr. Rohde remaining in the care of Crescent Clinic, that the
investigating officer monitor Mr. Rohde’s stay at the clinic
in
accordance with set guidelines and that Dr. Stoloff was to file a
report with the Registrar of this Court by no later than the
20
th
of February 2018 regarding his patient’s mental health.
[37]
Dr. Stoloff filed a report on 20 February 2018 setting out that Mr.
Rohde had made a remarkable recovery, illustrative by his
capacity to
make “
decisive
decisions”
which related to his legal representation in that Mr. Rohde
terminated the mandate of Mr. Mihalik and two other junior counsel
on
the 14
th
of February 2018.
[30]
This meant that whilst Mr. Rohde who had, just days before, allegedly
been mentally unfit for the next 6 (six) weeks, had
now (days later)
recovered and were able to make competent decisions as confirmed by
his attending psychiatrist. By the time
that the report was
filed, Mr. Rohde had been discharged from hospital and he was found
by Dr. Stoloff to be fit to resume the
trial on the following day,
the 21
st
of February 2018. The trial proceeded accordingly.
[38]
The Full Bench in
Petersen
referred to the accused, Mrs Najwa Petersen’s medical
circumstances and conditions as being a “
boomerang”
between events and applications.
[31]
She too had made remarkable recoveries and relapses which vacillated
as the trial and bail enquiries proceeded. The
Court in
Petersen
viewed this as bearing negatively on the determination of bail and
whether the accused would comply with bail conditions.
The
sequence of events, when Mr. Rohde was absent from Court on the
grounds of ill health and his recovery in the days thereafter
to the
extent that he was considered fit to resume the trial, creates the
clear impression that Mr. Rohde had misrepresented or
failed to
disclose, the true nature and extent of his medical condition.
Like the Full Bench in
Petersen
which was faced with essentially similar relevant facts, this Court
is likewise satisfied that Mr. Rohde was also not totally frank,
honest and in good faith regarding his state of health and showed an
undermine of his bail conditions.
NEW
AND OLD FACTS:
[39] Facts placed before
this Court that the applicant is suffering hardship in prison; that
his financial affairs are resultantly
parlous; that legal proceedings
declaring his ineligibility as a trustee and director resulting from
his conviction had followed
requiring his attention; inability to
afford legal fees, are arguably not new facts. These are
consequences flowing from
incarceration. They are not peculiar
to Mr. Rohde and the Court was well aware of same and considered it
at previous bail
applications. The legal principle that an
accused cannot be allowed to repeat the same application for bail
based on the
same facts is that same would amount to an abuse of the
proceedings. However, that Mr. Rohde had been afforded leave by
the
SCA tilts the argument in his favour that an application afresh
can be entertained as to the question of his liberty pending appeal.
In
S v Vermaas
1996 (1) SACR 528
(T)
the
Court held that once the application is entertained the Court should
consider all facts before it, new and old and on the totality
come to
a conclusion. This requires of the Court to not myopically
concentrate on the new fact/s alleged. Whilst in
the
former applications for bail, it was anticipated that the business of
Mr. Rohde would suffer, it is so that certain factual
developments
had now materialised which together with other facts are worthy of
this Court’s renewed attention.
CONDITIONS
OF INCARCERATION AND THE CORRECTIONAL SERVICES ACT
:
[40]
Mr. Rohde made a number of allegations in his affidavits that he is
being incarcerated at Drakenstein Correctional Facility
under
circumstances such as being in a single cell for 6 months without
interaction with others for the remaining 23 hours per
day;
[32]
that he has no access to newspapers, radio and television;
[33]
that he is depressed and had not been able to obtain medical care or
any psychiatric help or medication whatsoever.
[34]
[41]
I pointed out to Mr. King SC that these circumstances would be
irregular and warranted a remedy in the form of a complaint
to the
Head of Prison and/or the Office of the Judicial Inspectorate as it
does not comply with the provisions of the Correctional
Services Act
111 of 1998 (‘the Act’). Mr. Rohde would be
entitled to health care in terms of Section 12
of the aforementioned
Act as well as private medical care.
[35]
Conditions regarding his accommodation in a single cell would have to
comply with Section 30 titled: “
Segregation”
and read with section 7 titled: “
Accommodation”
.
[36]
Complaints and requests are provided for in terms of Section 21 of
the Act and if an inmate is not satisfied with the response
to his
complaint or request, the inmate may indicate this with the reasons
for the dissatisfaction to the Head of the Correctional
Centre, who
must refer the matter to the National Commissioner. The
response of the National Commissioner must be conveyed
to the
inmate.
[37]
Further
provision is made if the prisoner is not satisfied with the aforesaid
response, to refer the matter to the Independent
Correctional Centre,
who must deal with it in terms of the procedures laid down in Section
93 of the Act.
[42]
Mr. King SC however did not submit that Mr. Rohde was being
discriminated against. These concerns, even if true, apply
to
all prisoners alike and appears to be in line with international
norms and standards. It was put to Mr. King SC in argument
that the
preamble to the
Correctional Services Act recognised
the Bill of
Rights in our Constitution, recognises the international principles
on correctional matters, and provides for custody
under human
conditions. In other words the aforesaid Act is a post 1994
legislation which recognises the fundamental rights
enshrined in our
Constitution. In response it came as no surprise that Mr. King
SC abandoned averments of Mr. Rohde being
mistreated in prison.
After taking of instructions, Mr. King SC informed the Court that Mr.
Rohde is getting medical attention
and counselling in prison.
Essentially,
it boils down to the fact that Mr. Rohde finds incarceration
unbearable
.
[38]
Mr Rohde, it was argued, wants his “
freedom”
and not being “
kept
in chains”
and “
in
a prison cell”
.
[39]
FINANCIAL
AND EMOTIONAL HARDSHIP:
[43]
The consequences of incarceration are such that it undeniably have a
domino and adverse effect on the life, welfare and finances
of the
prisoner, and indeed for his children and dependants. The
preceding bail application on 6 December 2018 had been brought,
inter
alia
,
that Mr. Rohde’s release is warranted in order to provide to
the emotional and material needs of his three daughters.
Though
they are over the age of majority, it is not in dispute that they are
not yet self-supporting. At present the two
younger daughters,
twins aged 19, are pursuing tertiary education. The Court heard
at the recommencement of sentencing proceedings
earlier this year
that a death policy payment was made into the estate of the late Mrs.
Susan Rohde of under R1 million rand.
Mr. Rohde set out in his
affidavit that the children were surviving from the proceeds of the
estate of his late wife, however,
that this Court must consider as a
new and compelling fact to grant bail, that he would have to repay
the insurance payment should
his appeal be successful. This
argument is legally untenable and is a
non
sequitor
as
the insurance proceeds were paid into the deceased estate of the late
Mrs. Rohde. Any claim arising therefrom would lie
against the
deceased estate. Notably, this argument was also set out in the
notice of appeal to the SCA.
[40]
Mr. King SC in response abandoned this argument.
[41]
[44]
The “novel” economic argument in bail applications of
this nature is unfortunate and displaced. This argument
would
mean that any prisoner whose financial circumstances are inevitably
affected by incarceration should be released on bail
in order to deal
with the expected consequences of conviction. Incarceration
comes with the inevitable consequence of financial
hardship and
impoverishment.
[45]
In any event, this aspect in the case for Mr. Rohde, must be
considered against the evidence led during sentencing proceedings
apropos
the emotional and financial support, means and welfare of the Rohde
daughters as well as the findings of the Court during the preceding
bail applications which were based on the same facts. Trial
record page 3717 states at paragraph 14:
“
As
regards the children the Court accepts that this is a very difficult
time for them. I am however satisfied as far as the
children
are concerned that, notwithstanding as onerous as their path of
healing might be, that they are well loved by their extended
family
and that notwithstanding the grief for all the relatives concerned,
they have and by all accounts appear to be taken care
of by their
families….”
[46] It was not suggested
or argued that the Rohde children’s circumstances, as
articulated by the Court in the preceding
paragraph, had in any
manner materially changed.
LEGAL
PROCEEDINGS IN RESPECT OF BUSINESS INTERESTS:
[47]
The affidavit by attorney, Mr. Mostert, sets out facts relating to
legal proceedings instituted against his client in the South
Gauteng
High Court. The litigation in question is pending between Lew Geffen
No and 1 other and Anthony Louis Mostert, Jason Thomas
Rohde and 7
others, case number 19/24201. A notice of opposition on behalf of Mr.
Rohde had been filed with further opposing affidavits
to follow. Mr.
Mostert expressed his view that only Mr. Rohde can deal with an
attempt to take over his business by taking management
and control of
the Company and instructing legal representatives to oppose the High
Court proceedings and the hostile attack on
the company’s
business.
[48]
It had also been set out in the affidavits in support of bail as well
as submissions by Mr. King SC that his client’s
release on bail
would be pivotal in earning the necessary income to secure
prosecution of his appeal and the consequent legal costs.
At
present, Mr. Rohde is essentially represented on a
pro
amico
and
pro
bono
basis
.
[49]
In
Petersen
[42]
it was submitted for the accused that the trial would take some time
to finalise and that her continued incarceration for the duration
of
the trial would be inconvenient to her and her legal team as far as
preparation for trial and ongoing consultation during trial
would be
concerned. The Court held that these factors, holistically
speaking, were not “
weighty
factors”
in deciding the issue of bail pending trial.
REQUEST
TO LEAD VIVA VOCE EVIDENCE
:
[50]
This brings me to deal with the issue raised that Mr. Rohde wished to
lead
viva voce
evidence in the present application in order to supplement his case.
At the hearing of the application, Mr. King SC, confirmed
that the
facts upon which the application for bail is sought had been placed
before the Court. Leave had been given to Mr.
Rohde prior to
his hearing to place any further facts deemed relevant for the
determination of the application for bail, which
leave was duly
exercised. It is necessary to mention that the facts were not
in dispute and the Court could determine the
matter on the papers.
The record states at page 56, paragraph 20:
“
COURT:
….the facts which you wanted to place before me, I have read
Mr. Mostert’s affidavit, was quite helpful in setting
out the
further litigations probably consequential to section 69 of the
Companies Act… his ineligibility to continue to
act as a
director… I am placed with those facts and it is before me and
I am happy that you have taken the opportunity to
supplement the
affidavits. Is there anything else you would like to add?
MR.
KING
:
M’Lady, it has been pointed out to me, and correctly so, that
this issue of the monetary problem associated with him getting
counsel to defend him and to carry on with the appeal, was of grave
importance. You will note that it is set out in ….
In
detail in the affidavit as well of my instructing attorney and that
is of grave importance because the issue of being able to
carry on
litigating is of importance so there was another aspect to that and
that was raised with me and that was also at the back
of my mind
regarding his coming to the Court….. I can take it no further
unless Your Ladyship wants to hear me on any other
aspect.”
[43]
REASONABLE
PROSPECTS OF SUCCESS ON APPEAL:
[51] Counsel on behalf of
the applicant submitted that leave granted means that there is a
reasonable prospect of success on appeal.
This fact alone does,
however, not entitle the applicant bail pending the hearing of the
appeal. The order granting leave
does not indicate the basis
upon which leave had been granted, in other words if had been granted
on the basis that there are reasonable
prospects of success on appeal
or if it had been granted on the basis that there exists a compelling
reason for it to be heard
on appeal. Mr. Van Niekerk submitted
that the petitioning Judges did not have access or sight of the
record, that the record
is voluminous, that the grounds of appeal are
not borne out by the record and that in his view leave would have
been granted for
reasons that it would afford the Supreme Court to
pronounce on the legal principles set out in the judgment. The
argument
for the State followed that granting the applicant bail, in
circumstances where essentially the application for rests on not more
than the fact that he had now been granted leave, would not service
the interests of justice.
DOES
THE INTEREST OF JUSTICE REQUIRE THE APPLICANT’S FURTHER
DETENTION OR WARRANT RELEASE PENDING APPEAL?:
[52]
In weighing up all the relevant factors in the determination of the
issue of bail pending appeal and the submissions for and
against the
granting thereof, the Court is mindful of factors which militate
heavily against the release of bail pending the appeal.
The
Court held in
R v
Mthembu
1961 (3) SA 468
(D) 470 – 471 A
,
the fact that leave to appeal is granted does not entitle a convicted
prisoner to be released on bail. Whether to grant
bail or not
in these circumstances is subject to the discretion of the Court, to
be judicially exercised, taking into account all
relevant factors.
See also
R v Milne &
Erleigh (4)
1950 (4) SA 601
(W)
at page 603 and
S v
Bruintjies
2003 (2) SACR 575
(SCA) para 6
.
[53] In
S v
Masoanganye
2012 SACR 292
(SCA) paragraph 14
the Court held that
the seriousness of the offence is a factor which a Court must weigh
in the balance, the risk of absconding
and the likelihood that a
non-custodial sentence might be imposed are factors which the court
must also take into account. It
is clear from these authorities
that the granting of leave
per se
must not be looked at in
isolation. It is a factor to be taken into account along with
other relevant considerations.
Leave to appeal granted to Mr.
Rohde does not mean that the trial is starting
de novo
(afresh) nor that it nullifies or vitiate his convictions and/or
sentences.
WOMEN’S
LIVES MATTER
:
[54]
Mr Rohde had been found guilty of murdering his wife and there after
elaborately and methodically going about to stage her
murder as a
suicide. This type of crime is the ultimate and most extreme
form of gender based violence. In the event
the conviction is
confirmed on appeal, there are no reasonable prospects that a
non-custodial sentence would be imposed.
Crime based on gender
is an affliction in our society. The crime against women is a
social ill and efforts by government
and society are increasing in
light of a steady increase of these type of offences. The rate
of the murder of women in South
Africa is alarmingly high compared to
the global average. Attitudes to women determine how women are
treated in society.
It is the lowered perception of women as
human beings, who are entitled to human dignity and equality, which
results in the unhealthy
social paradigm that they can be victims and
in fact end up being victims of crimes because they are women.
The judiciary
must guard against such perceptions and creating the
impression that the lives of women are less worthy of protection.
[55]
It is significant to add that the contention that convicted prisoners
with business and economic interests must be released
on bail in
order to salvage and service same is an argument that must be
dismissed for having no place in our democracy and it
decries the
values of our Constitution.
[56] Releasing Mr. Rohde,
who was convicted of the savage murder of his wife, on the basis
essentially that he had been granted
leave to appeal and that his
release would allow him to manage his wealth and other needs and
comforts would threaten law and order.
It undoubtedly offends the
principle of equality and the rule of law which renders all of us
equal before the law, irrespective
of our economic standing and
position in society. Access to justice is enshrined in our
Costitution. Mr Rohde’s
limitation to finance his legal
fees, as alleged, will not erode or extinguish that right. His
rights of access to justice
and legal representation is of course
constitutionally protected.
CONCLUSION
:
[57]
In consideration of the facts and submissions in support and against
the granting of bail, viewed individually and holistically,
this
Court is of the view that releasing Mr. Rohde on bail for the reasons
advanced would offend the rule of law and would make
a mockery of the
criminal justice system. The case for the applicant in support
of his bail does not trump the factors warranting
his continued
incarceration. The applicant did not discharge the onus of proof
resting upon him, namely, that it would be in the
interests of
justice to release him on bail pending his appeal to the SCA.
The administration of justice would be seriously
undermined if this
Court were to grant bail for the reasons advanced and in
circumstances where the applicant had been convicted
of such a
serious and heinous murder.
[58]
In the result, the Court is not persuaded that the facts before it
are sufficiently compelling to justify the interruption
of Mr.
Rohde’s sentence of imprisonment. If anything, the
interests of justice require that he should continue to serve
his 20
year sentence.
[59]
Wherefore, the application for bail pending hearing of the
applicant’s appeal must fail and accordingly, I order as
follows:
(i)
“
The
application for bail is accordingly dismissed.
”
(ii)
The Chief
Registrar of this Court is directed to furnish a copy of this
judgment to the Supreme Court of Appeal together with the
transcription of the proceedings to ensure that it is placed before
the Judges hearing the appeal (Case No:
483/2019).
_________________
SALIE-HLOPHE,
J
[1]
Trial
record page
3716
[2]
Applicant’s
heads of argument – page 4, paragraph 8 and 9
[3]
Respondent’s
heads of argument – page 3
[4]
Transcript
of
record (present bail
application) page 55 - 56
[5]
Hereinafter
referred to as the CPA
[6]
Section
321: ‘When execution of sentence may be suspended’
[7]
Beetge v
The State (925/12)
2013 ZASCA 1
(11 February 2013)
[8]
Reference to an accused distinguished from a convicted prisoner
[9]
Nagel (ed)
Rights of the Accused (1972) pg 177 - 178
[10]
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
[11]
Section 60
deals with bail of accused persons pending trial and
‘at
any stage preceding his or her conviction
….
If the court is satisfied that the interests of justice permit.’
(emphasis
own)
[12]
Transcription of bail proceedings – page 5, line 23 & page
6, line 2 onwards
[13]
Encyclopaedia
Britannica - Citizenship
[14]
Australian
passports: your easy guide on how to renew, replace or apply
for a new passport/Australian Passports Acts no.5/2005
[15]
Majesty’s
Passport Solutions: British Passport Applica
[16]
Exhibit Z –
Bail record page 79 – line 20 (statement under oath by accused
pages 71 - 81)
[17]
Exhitit Z – Bail proceedings (magistrate’s court)
transcription record page 86 – lines 12 - 15
[18]
Exhibit Z –
Bail proceedings (magistrate’s court) transcription record
page 14 – lines 15 - 20
[19]
Mrs.
Petersen had an active bank account in Namibia
[20]
Trial record, page 1504 (lines 15 – 25)
[21]
Mr. Rohde was admitted to Crescent Clinic on Friday, 1 February 2018
[22]
Trial record page 1512, line 8 - 15
[23]
Trial record page 1511 – para 5 – 15 and page 1512 –
para 8 - 10
[24]
Section 67:
“Failure of accused on bail to appear”
[25]
Record page 28 (present bail application)
[26]
Trial record, page 1549 – line 17
[27]
Trial record 1552- para 1 – 10
[28]
Section 77
of the CPA: Capacity of accused to understand proceedings
[29]
Section 70
of the CPA: Panel for purposes of enquiry and report
under
sections 77
and
78
[30]
Report by Dr. Stoloff dated 20 February 2018: “…
..it
is my opinion that his ability to concentrate and make logical and
tactical decisions, has significantly improved.
This has been
demonstrated, since then, by his ability to make certain decisive
decisions.”
[31]
2008 (2) SACR 355
– paragraph 70
[32]
Bail record
page 12 – paragraph 44 46
[33]
Bail record
page 12 – paragraph 45
[34]
Bail record
page 28 – paragraph 127
[35]
Correctional
Services Act 111 of 1998
,
Section 12
(3)
[36]
Section
7(2)(e)
states that the National Commissioner may accommodate
inmates in single or communal cells depending on the availability of
accommodation.
[37]
Section
21(4)
[38]
Transcribed record of bail application – page 36, line 10
onwards
[39]
Transcribed record of bail application- page 37, lines 18-20
[40]
Transcription of proceedings in bail application – page 43,
line 14 onwards
[41]
Transcription of proceedings in bail application – page 42,
line 25: “
That is
correct, M’Lady…. I am not proceeding with that
argument.”
[42]
Paragraph 66 of the judgment
[43]
Line 20 - 25