About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 698
|
|
Porritt v S (A202/2018) [2018] ZAGPJHC 698 (10 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A202/2018
CASE
NO: SS40/2006
In
the matter between:
PORRITT,
GARY PATRICK
Appellant
and
THE
STATE
Respondent
JUDGMENT
WEINER,
J (MOOSA AJ and MOGOTSI AJ concurring)
Introduction
[1]
This appeal is against a final forfeiture order, in terms of
which the appellant’s bail money was forfeited and his bail
cancelled,
in accordance with section 67(2)(a) of the Criminal
Procedure Act No 51 of 1977 (the ‘CPA’). The appellant
had previously
been released on bail pending the finalisation of his
trial.
[2]
The order of the court a quo was issued on 21 July 2017 (the
‘
July
order'). The relevant parts of
the order read as follows:
‘
1.
In terms of section 67(2)(a) of the CPA, the provisional cancellation
of bail that was ordered on the 19
th
June 2017 is confirmed and Mr Porritt is to be held in custody as an
awaiting trial prisoner, unless the court decides to grant
him bail,
or provide any special dispensation as to the place of his detention,
under a fresh application.
2.
The provisional forfeiture of the bail money, which was reduced at
some stage, from the sum of R800 000,00 to the sum of
R100 000,00, is confirmed subject to the rights, if any, of the
Office of the Chief Justice to claim disbursements incurred
….’
[3]
In terms of the order, the proceedings were adjourned to 1
August 2017 and would continue on the dates set out in the order.
[4]
On 7 September 2017, the court a quo refused leave to appeal
its judgment and order. The appellant applied for leave to appeal to
the Supreme Court of Appeal (the ‘SCA’) on 9 November
2017. On 15 February 2018, the SCA granted the appellant leave
to
appeal to the Full Bench of this Division. This appeal came before us
on 26 November 2018.
Appealability
[5]
The respondent argued
that the court a quo’s decision was not appealable and referred
to various authorities in this regard.
It was submitted that the fact
that this order is not appealable does not leave the appellant
without remedies. The appellant argued
that he had an automatic right
of appeal against the withdrawal of bail in terms of section 68 of
the CPA. He referred to
S
v Nqumashe
.
[1]
Section 68 of the CPA provides for the withdrawal of an accused’s
bail after an inquiry, whereas section 67 is predicated
solely upon
the non-appearance of an accused at the proceedings.
[6]
Section 68 postulates a
wider inquiry than section 67, into allegations that an accused may
be on the verge of evading justice or
interfering with the
respondent’s witnesses. However, the appellant argued that the
two sections are identical and that accordingly
the court a quo’s
decision was appealable. In
Nqumashe
the Court referred to the opinion in
Hiemstra:
Suid Afrikaanse Strafproses
that
the cancellation of accused’s bail is not appealable, but
rejected this opinion because it predated the promulgation
of the
interim and final Constitutions.
[2]
The Court observed that different considerations apply in the light
of the post-constitutional dispensation in terms of which an
accused
has a right to be released on bail provided that the interests and
the administration of justice are not compromised by
such release.
[3]
[7]
The respondent argued that the CPA does not provide for an
appeal when bail is forfeited in terms of section 67. It argued that
there are alternative remedies available to the appellant - the
appellant may approach the Minister
of Justice and
Constitutional Development,
or the court, in terms of
section 70, for a remission of the bail. Further, he is at
liberty to launch a fresh bail application.
[8]
This Court gave a ruling
that the matter was appealable with reasons to follow. There
are conflicting authorities in regard
to the issue of
appealability.
[4]
The respondent’s submissions that there is no
appeal
against
an order in terms of Section 67
does not take into account that the order also involves a
cancellation of bail and the resultant incarceration of the
appellant.
As the SCA has granted leave to appeal, this Court is of
the view that, taking into account the constitutional imperatives
referred
to by Majiedt J (as he then was), in
Nqumashe
,
it is in the interests of justice that the appeal be heard.
Application
to introduce new evidence
[9]
The appellant sought to introduce new evidence relating to a
diagnosis that the appellant received on 17 August 2017. The
diagnosis
was that the appellant is suffering from paroxysmal atrial
fibrillation and postural hypotension (the ‘diagnosis’).
This diagnosis, made before the application for leave to appeal was
launched, does not appear to have formed part of the appellant’s
application for leave to appeal in the court a quo, nor was it
mentioned in his application to the SCA for leave to appeal. It
was,
however, adverted to in the condonation application, when he
petitioned the SCA for leave to appeal. According to the appellant,
the new evidence that he wishes to introduce at this stage, provides
confirmation that he did experience syncope attacks, and that
the
cause thereof was the medical condition that has now been diagnosed.
He thus contends that this confirms that he was not malingering
when
he was admitted to the Mediclinic in Pietermaritzburg (‘Mediclinic’)
on 10 June 2017.
[10]
The appellant only filed the application to adduce the new
evidence in this Court on 26 September 2018, more than a year after
the
diagnosis. The respondent contends that this application should
have been brought in the court a quo when the diagnosis was made,
in
a fresh bail application.
[11]
The respondent also
submits that, in general, an appeal court will decide whether the
judgment appealed from is right or wrong,
according to the facts in
existence at the time it was given – and not in accordance with
new facts or circumstances which
subsequently come into existence.
The introduction of such facts will be only allowed in exceptional
and peculiar circumstances.
[5]
The respondent argues that the application to lead new evidence must
fail, in instances where the facts sought to be canvassed
are
irrelevant or disputed, in other words, where they are not
incontrovertible.
[12]
It is also submitted by the respondent that the new evidence
of the diagnosis is untested and inadmissible hearsay evidence.
Opinions
given by the medical practitioners have not been confirmed
under oath. The appellant alleged in the founding affidavit that ‘Dr
Makda made the actual diagnosis of paroxysmal fibrillation’.
However, there is no evidence in the form of an affidavit
from Dr
Makda. There is also no evidence presented by the appellant that Dr
Tsitsi (‘Tsitsi’), upon whose report he
relies, ever
examined him. The respondent accordingly contends that the new
medical evidence should have been presented in accordance
with the
general rules applicable to evidence in criminal trials, that is,
that witnesses in criminal proceedings should be examined
and
cross-examined under oath.
[13]
This Court ruled that the new evidence was not admissible at
this stage of the proceedings and indicated that reasons would be
given
thereafter. The reasons are those that appear above. The
correct procedure was for the appellant to have launched a fresh bail
application in the court a quo based upon this new evidence of the
diagnosis and any other factors which he wished to bring to the
court’s attention. The appellant has not shown any exceptional
or peculiar circumstances why this Court should accept this
untested
and challenged evidence at this point in time.
Section 67 of the CPA
[14]
Section 67(1) of the CPA provides that when an accused fails
to appear in court, the court ‘
shall
declare the bail
provisionally cancelled and the bail money provisionally forfeited to
the State and issue a warrant for the arrest
of the accused’
[emphasis added].
[15]
Section 67(2)(a) provides that, if the accused appears before
court, within 14 days of the issue of the warrant of arrest, the
court
shall
confirm the provisional cancellation of the bail
and the provisional forfeiture of the bail money,
unless the
accused satisfies the court that his failure, under subsection (1) to
appear or to remain in attendance, was not due
to fault on his part
[emphasis added].
[16]
If the accused does not show that his non-attendance was not
due to fault on his part, then the provisional cancellation of the
bail and the provisional forfeiture of the bail becomes final.
[17]
The court a quo went
into much detail as to the test to be applied. In this regard the
court relied on
S v
Singo
.
[6]
In
Singo,
dealing
with section 72 of the CPA, the Constitutional Court held:
‘
It
is true that the section requires the accused to prove only those
facts which are within his or her knowledge. However, it is
one thing
to require the accused to produce evidence that raises a reasonable
doubt, but quite another to require the accused to
establish his or
her innocence on a balance of probabilities, and if he or she fails
to do so, to convict the accused despite the
existence of reasonable
doubt. There are no particular circumstances here which suggest that
the State cannot achieve its objective
by imposing merely an
evidentiary burden. That burden, while requiring the accused to prove
facts to which he or she has access,
is also faithful to the
presumption of innocence. The imposition of such a burden would
equally furnish the reason for failure
to appear in court.
’
[7]
[18]
The court a quo, in applying
Singo
to section 67(2)(a),
stated that it would interpret such section by reading into it
the words set out in italics below:
‘
The
court shall confirm the provisional cancellation of the bail and the
provisional forfeiture of the bail money, unless the accused
satisfies the court that ‘
there
is a reasonable possibility that’
his failure, under subsection (1) to appear or to remain in
attendance, was not due to fault on his part.
This
insertion, the court a quo held, would also apply to section
67(2)(b). The section thus provides for an evidentiary burden,
not a
full onus. In referring to the term “reasonable possibility”
the court a quo equated such term with a ’fair
possibility’
as opposed to a fair probability. Thus, the court a quo applied a
less stringent test for the appellant to satisfy.
[19]
In deciding whether or not the appellant has discharged the
evidentiary burden placed upon him, the Court has had regard to the
chronology of events which are set out hereunder:-
[19.1]
On 5 June 2017, the appellant applied for a postponement. Such
postponement was refused and the parties agreed to dates for when
the
trial was to proceed; that is on 6 to 8 June, 12 to 14 June and 19 to
22 June 2017.
[19.2]
The appellant alleges that, on the evening of 9 June 2017, he
suffered three attacks of syncope whilst at the Keg Restaurant. He
was with one Vanessa Pretorius. Vanessa Pretorius was not mentioned
by the appellant as a witness until late in his cross-examination
in
this regard. Gregg Porritt, the appellant’s son, saw the CCTV
video footage for the night of 9 June 2017 at the Keg Restaurant,
but
was not called as a witness.
[19.3]
On 10 June 2017 at 14h00, the appellant was taken to the
Mediclinic in Pietermaritzburg and admitted to the cardiac ward.
[19.4]
It is common cause that on 12 June 2017, the appellant failed
to appear in court. An order for the provisional forfeiture of his
bail money and the provisional cancellation of the bail was issued.
[19.5]
The Judge a quo, when issuing the order, stated that he had
been informed by the second accused, Susan Bennett (‘Bennett’)
that the appellant was in hospital. She requested the court not
toissue a warrant of arrest. The respondent acceded to the request
that the warrant be authorised but not issued. The court a quo was
prepared to make that order, having due regard to the possibility
that Porritt’s admission at Mediclinic could be prolonged.
[19.6]
The order of 12 June 2017 (the ‘12 June order’)
provided as follows:
1.
A warrant for the
arrest (“the warrant”) of Accused no 1, Mr G Porritt, is
authorised
2.
Accused no 1
(“Porritt”) is to show cause on Monday, 19 June 2017 at
10 am why the warrant should not be issued and
his bail be estreated.
3.
Porritt shall
obtain a written report from Dr Mugabi or a specialist which is to be
forwarded to the parties and the court by no
later than 14h00 on 15
June 2017 with regard to whether or not he is able to attend court on
19 June 2017 and, if not, to provide
a date by when Porritt will be
discharged from hospital and whether there is any medical condition
that precludes him:
a)
from appearing in court on 19 June 2017; or
b)
once in attendance on 19 June 2017, from being able to participate in
the continuation of the trial
and,
if applicable, for how long is it expected that he will be unable to
so participate.
[19.7]
On 12 June 2017, the appellant underwent various medical tests
at the Mediclinic. Dr Mugabi (‘Mugabi’), the
cardiologist,
provided a certificate stating that the appellant would
be an in-patient for three to five days for an investigation into the
cause
of his syncope attacks.
[19.8]
On 13 June 2017, Dr Yacoob (‘Yacoob’), was ready
to discharge the appellant but the appellant requested to see Mugabi
again. Mugabi saw him at 19h00. Mugabi was also ready to discharge
him, but the appellant then mentioned the court case, and requested
to stay overnight in order to see a psychologist and a neurologist.
Mugabi felt that the request was not unreasonable. The appellant
requested that he only be discharged the following day.
[19.9]
On 13 June 2017, Detective Warrant Officer Harding served the
court order on Porritt at the Mediclinic and informed him that Mugabi
and Yacoob should submit reports to the court by 15 June 2017, as per
the 12 June order. It is common cause that the appellant
did
not ask either doctor for such a report.
[19.10]
The appellant was discharged from the Mediclinic at noon on 14
June 2017.
[19.11]
Mugabi had suggested that the appellant see a Clinical
Psychologist, Dr Elder. That doctor was unavailable and could not see
the
appellant. The appellant then tried to see Dr Dobreva, Bennett’s
psychologist, but she was also not available. The book-keeper
at Dr
Dobreva’s rooms advised the appellant to have himself admitted
at the Oatlands facility (‘Oatlands’). However,
in order
to do so, he required a referral letter from a medical practitioner.
He thereafter consulted with Dr Brown (‘Brown’)
who
noted, inter alia, in her clinical notes:
‘
Quite
stressed at present – co-accused also – wants to be
admitted to Oatlands to miss court date on Monday.’
[19.12]
It is common cause that by 15 June 2017, the appellant had
failed to submit any doctors’ reports to the court as provided
for in the 12 June order.
[19.13]
The appellant was referred to Oatlands by Brown for evaluation
of possible epilepsy and his psychiatric state of health. Brown
arranged
for the appellant to be admitted on 17 June 2017. The
appellant only went to Oatlands on 18 June 2017. He arrived at
Oatlands in
his own car at 15h50 and he was admitted thereafter. He
requested to see a psychiatrist urgently as he needed a doctor’s
letter for the court proceedings the following day.
[19.14]
Thus, on 19 June 2017, the appellant failed to appear in
court. Bennett applied for a postponement until 31
July
2017, which was refused. The court postponed the matter to 26 June
2017 and issued the following order (the ‘19 June
order’):
1.
The matter is
postponed for trial to Monday 26 June 2017 at 10:00. Accused No.2 (Ms
Bennet) and Mr Milne have been warned to appear
on that date.
2.
Accused No 1’s
(Mr Porritt) bail conditions are hereby amended in terms of
Section
62
of the
Criminal Procedure Act, Act
51 of 1977, in that Mr Porritt
shall in addition submit himself prior to the hearing on Monday 26
June to the District Surgeon
Johannesburg to be examined and assessed
on:-
2.1
what may have
caused the alleged syncope suffered by Mr Porritt and what is the
likely prognosis in so far as it may affect the
trial proceedings in
this matter;
2.2
Mr Porritt’s
medical condition (which includes his psychological and psychiatric
condition) including his ability to stand
trial;
3.
In terms of
s 67
(1) of the said
Criminal Procedure Act:
3.1
the
bail of Mr
Porritt is provisionally cancelled;
3.2
Mr Porritt’s
bail monies or those paid on his behalf are provisionally forfeited
to the State;
4.
In terms of
s 67
of the said Act a warrant for the arrest of Mr Porritt is hereby
issued.
5.
The Officer
responsible for serving the warrant is required to forthwith bring Mr
Porritt to appear before this Court. If there
is a delay Mr Porritt
will be brought before the District Surgeon of Johannesburg to
establish which medical facility Mr Porritt
may be detained at prior
to his appearance before this Court.
6.
The District
Surgeon of Johannesburg shall forthwith determine as a matter of
urgency, and in any event by no later than Friday,
23 June 2017.
6.1.
Whether Mr
Porritt’s medical condition (which includes his psychological
and psychiatric condition) precludes him from attending
the court on
Monday 26 June 2017.
6.2.
Whether Mr
Porritt’s medical condition (which includes his psychological
and psychiatric condition) precludes him from following
the
proceedings or being able to sit through the duration of the
proceedings scheduled from 26 June through to 12 noon on Friday
30
June 2017.
7.
The District
Surgeon of Johannesburg shall also examine Mr Porritt and provide a
diagnosis as to;
7.1.
What may have
caused the alleged syncope suffered by Mr Porritt and what is the
Likely prognosis in so far as it may affect the
trial proceedings in
this matter.
7.2
Mr Porritt’s medical condition (which includes his
psychological and psychiatric condition), including his ability to
stand trial.
[19.15]
On 19 June 2017, at 07h30, he consulted with Dr Pillay
(‘Pillay’). Pillay had been contacted by Bennett who had
informed
Pillay that the court had ordered the appellant to be
examined by a district surgeon. Pillay issued a medical certificate
from
Oatlands stating that the appellant was ‘not fit to attend
court currently.’ (She stated in her evidence, that the reason
for this certificate was not that he was not fit to stand trial, but
that she consulted with him on that morning and therefore
he would
not have been able to appear in court. However, she agreed that, in
his physical and mental condition, he could be investigated
at
another facility and not necessarily at Oatlands.)
[19.16]
On 20 June 2017, an application for leave to appeal the 19
June order was brought by both the appellant and Bennett.
[19.17]
On 20 June 2017, Pillay realised that the contents and purport
of her medical certificate had been misconstrued and accordingly
clarified the gist of her certificate by forwarding an email to all
the relevant persons. On 21 June 2017, the appellant was discharged
from Oatlands by Pillay in terms of the 19 June order.
[19.18]
Having been discharged from Oatlands by Pillay, the appellant
admitted himself into the Mediclinic at 20h44 with dizzy spells. He
was seen by Dr Siddique (‘Siddique’) at 21h00. Siddique
examined the appellant and found that it was not necessary
for him to
be admitted at the Mediclinic and that he was fit to travel. Siddique
suggested that he see a psychiatrist, as an outpatient,
for his
anxiety.
[19.19]
The appellant was thereafter examined by Dr Soni (‘Soni’),
the district surgeon, at 12h30 and by Dr Mabata (‘Mabata’),
a psychiatrist, at 16h05.
[19.20]
According to Mabata, the appellant was ‘asking for help
to be given time off, to work on the case, as he needs a break. He
is
exhausted’. However, it was specifically stated that he could
not be booked off sick. It was also noted on the hospital
records
that according to the cardiologist, the neurologist and the
psychiatrist, all the doctors have confirmed that he was fit
to
travel.
[19.21]
The appellant was thus declared fit to travel by Soni, who had
consulted all of the doctors – being Yacoob, Mugabi, Siddique
and Mabata.
[19.22]
On 21 June 2017, the appellant’s legal representatives
withdrew the application for leave to appeal. The court issued a
warrant
for the appellant’s arrest. It was also ordered that:
(1)
The appellant was to be brought before the court and could have a
medical practitioner present.
(2)
He was to be detained at the Charlotte Maxeke Hospital until further
direction from the court.
(3)
Subpoenas
duces tecum
were to be served on Drs Brown, Mugabi
and Pillay to furnish the court with all relevant medical records
from 8 June 2017 to date.
(4)
The appellant was to testify first during the Section 67 inquiry.
(the ’21 June order’)
[19.23]
On 21 June 2017, the appellant was arrested at the Mediclinic
and transferred to Johannesburg. He and his family refused to have
a
nurse, a paramedic or a doctor accompany him on the trip to
Johannesburg. In terms of the 21 June order, he was first taken to
Charlotte Maxeke Hospital, but they would not admit him as there was
a long waiting list; he was thereafter taken to Milpark Hospital
(‘Milpark’) where they would not admit him as he was in
custody. Thereafter, he was taken to a hotel for the night.
[19.24]
On 22 June 2017, the appellant appeared in court. He seemed
unstable and was lying on the floor in court. His counsel elected to
proceed with the matter. The matter was then postponed to the
following day. The appellant was to remain in custody but detained
at
Milpark, if he was admitted. He thereafter went to the Milpark
Emergency Department. There is CCTV footage of the appellant
at
Milpark, which the court a quo found shows that he appeared to be
well and stable as opposed to his appearance in court that
morning.
[19.25]
On 23 June 2017, the section 67 inquiry was postponed at the
appellant’s request to 27 June. The appellant was to be taken
by SAPS to Milpark to be examined by a neurologist, Dr Rowji (or
whoever Dr Rowji referred him to) on 23 June.
[19.26]
On 26 June 2017, the appellant was examined by a neurologist
and according to the appellant, he received a verbal report. No
written
report was produced, nor was any information provided by the
appellant as to the contents of the verbal report.
[19.27]
On 27 June 2017, the section 67 inquiry commenced. The
appellant’s counsel stated that the appellant would be the only
witness
in his defence. The court did not allow the affidavits of two
witnesses – Van Eeden and Govender – who apparently
witnessed
his fall on 9 June 2017. The court found that the evidence
that they had seen him fall, did not exclude the possibility that he
was malingering.
[19.28]
On 8 July 2017, after finally revealing that the name of his
friend that had accompanied him to Keg Restaurant, was Vanessa
Pretorius,
the appellant made an application for a postponement in
order to call her. The court refused the postponement.
[20]
The appellant refers to these two rulings as one of the
grounds for his appeal. However, in view of the decision to
which
we have come, it is not necessary to go into the circumstances
relating to his default on 12 June for the reasons set out below.
[21]
Having regard to the evidence that was led and the medical
certificates that were obtained, this Court finds that the
explanation
as to why the appellant did not appear on 12 June appears
to be reasonably possible. Accordingly, we find that such default was
not due to his fault. The fact is, he was in hospital and was
undergoing tests. For that reason, irrespective of whether he was
malingering or not, he was unavailable to attend court.
The
default of 13 June and 14 June
[22]
In regard to the dates of 13 and 14 of June 2017, the
appellant was still detained in hospital. The court a quo
specifically provided
for the situation where the possibility that
Porritt’s admission at Mediclinic may be prolonged, when
postponing the matter.
Furthermore, it is a valid interpretation that
as the matter was postponed to 19 June by the court a quo, he was
excused from attending
court until 19 June. That is also a reasonably
possible explanation for his default on 13 and 14 June 2017.
The
default of 19 June
[23]
The situation is different in regard to 19 June 2017. It is
quite clear from the chronology set out above that the appellant
arranged
his admission into Oatlands on 18 June 2017, so that he
would not be able to appear in court on 19 June 2017.
[24]
The fact that he did not want to attend court on the appointed
date is apparent from the notes made by Brown and Mabata, referred
to
above.
[25]
Initially, the appellant stated that this quote of Brown was
‘completely incorrect’ and he attempted to attribute the
note as referring to Bennett and not to him. However, in
cross-examination, he agreed that the correct interpretation of this
note is that it referred to him. Brown would only have been able to
make such a note, if she had been told about the court date
on Monday
19 June 2017, by the appellant.
[26]
The note by Mabata lends further credence to the contention
that the appellant did not want to appear in court, presumably in
order
to further delay the proceedings.
[27]
It is pertinent that the appellant chose not to have a medical
practitioner accompany him to Johannesburg, when he was arrested,
despite this being made available to him. All the doctors that had
examined him found it was not necessary for him to be admitted
at the
Mediclinic and that he was fit to travel. If he was really suffering
from a life-threatening medical illness or was in such
a poor
emotional and physical state, he would have elected to have a doctor,
nurse or paramedic accompany him. He stated initially
that this was
the police officer’s fault, but then later said it was because
three doctors had advised him that he was fit
enough to travel.
[28]
The fact that he was quite able to appear in court and
continue with the trial, appears to be corroborated by a comparison
of the
CCTV footage at Milpark compared to the collage of images of
the appellant prior to the court appearance on 22 June 2017,
including
his conduct in court, when he was immobile, uneasy on his
feet and had difficulty sitting up. He could not even sit on the
chair
and lay down on the floor in court. However, the video evidence
from Milpark depicts a very different picture. The appellant had
indicated that his condition on 22 June 2017 was the same as his
condition prior to being arrested and brought to court from
Pietermaritzburg.
The learned Judge a quo summarised what the Milpark
video depicted, and from this Court’s viewing of the video,
this appears
to be an accurate summary. According to the Judge’s
summary the video:-
‘…
shows
Porritt lounging in a very relaxed manner on a chair. It also shows
that those with him in particular Bennett were not concerned
about
his well-being – Bennett moved and left Porritt to his own
devices as did the attorney. Porritt stood up without difficulty,
chatted and answered his cell phone. He also picked up the bag with
which he arrived without difficulty. No one offered to take
it for
him and he was seen leaving the hospital still carrying it.
’
[29]
In the video, the appellant was not walking slowly, he was not
immobile or uneasy on his feet, and he had no difficulty sitting up
and sitting on a chair, as opposed to lying on the floor. The video
extends over a period of hours and the conduct of the appellant
over
those hours does not change.
Delay
[30]
From the chronology presented above, it is apparent that the
failure to attend court on 19 June 2017 was a stratagem for delay on
the part of the appellant. This ties in with the previous history of
this matter which can be summarised as follows:-
[30.1]
The appellant was arrested on 14 December 2002 and released on
bail of R1 million on 20 December 2002.
[30.2]
In 2005, the respondent seized a large number of documents.
The appellant applied to court to declare the seizure unlawful. This
was upheld by the High Court in Gauteng but subsequently overturned
by the SCA.
[30.3]
The appellant and Bennett brought an application for Borchers
J to recuse herself, and on 19 September 2011, Borchers J did so. The
matter was allocated to Mailula J.
[30.4]
The appellants then brought an application for removal of the
prosecutors. On 20 September 2011, Mailula J upheld the claim by the
appellants and set aside the appointment of counsel for the
respondent. This order was also set aside by the SCA in 2015, where
Ponnan JA found that the appellant and Bennett were following a
strategy of delay.
[30.5]
On 27 July 2015, the indictment was served on the appellant
and Bennett. The High Court proceedings commenced on 31 July 2016
before
Spilg J. There is no information as to what occurred
thereafter. Presumably, the court recess intervened, for part of this
period.
[30.6]
The respondent commenced leading its first witness, Mr Milne,
on 5 September 2016.
[30.7]
In January 2017, Bennett fell ill and had emergency heart
bypass surgery and was diagnosed with stress-induced depression. The
matter
was thus postponed until 5 June 2017 when the parties agreed
on the dates for the trial to resume.
[31]
What is noteworthy from the above, and in particular from the
notes of Mabata and Brown, is that the appellant stated to them that
‘he was exhausted’ from the court case and required ‘a
break to work on his case’.
[32]
This information provided to the medical practitioners must be
seen as a further stratagem to get them to assist the appellant in
having the trial delayed. The trial had not run for the past six
months. Therefore, he could not have been exhausted from the trial
and could not have needed a break to prepare for the trial. He had
six months within which to do so. Accordingly, this leads further
to
the conclusion that his explanation for his non-appearance on 19 June
2017 does not satisfy the requirement that he must show
a reasonable
possibility that no blame can be attributed to him for not being in
court.
[33]
The appellant is not left without a remedy. The new evidence
which he wished to bring before this Court can be brought before the
court a quo in a fresh application for bail based upon, inter alia,
the new evidence. A full inquiry can be held as to whether
or not he
is a flight risk or will interfere with witnesses. The inquiry in
terms of section 67 is restricted to whether or not
there is a
reasonable explanation for his default in failing to appear.
Once it is decided that there is no reasonable explanation
the court
‘shall declare the bail provisionally cancelled and the bail
money provisionally forfeited to the State and issue
a warrant for
the arrest’. In such event, when the appellant fails to give a
reasonable explanation ‘the provisional
cancellation of the
bail and the provisional forfeiture of the bail money shall become
final’. Thus, once the court rejects
his explanation as not
being a reasonably possible explanation, there is no further inquiry
and the order becomes final.
[34]
Accordingly, we find that the appellant has failed to show
that the court a quo erred in its finding that he was in default on
19
June 2017.
Accordingly,
the appeal is dismissed.
________________________________________
S WEINER
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
_______________________________________
C
I MOOSA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
________________________________________
J
MOGOTSI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date of hearing:
26 November 2018
Date
of judgment:
10 December 2018
APPEARANCES:
Counsel for the Appellant: Adv. W
Vermeulen SC
Instructing Attorney: Frank Cohen
Counsel for the Respondent: Adv. E
Coetzee SC
Adv.
J Ferreira
Adv.
P Louw
Instructing Attorneys: State Attorney
[1]
S
v Nqumashe
2001 (2) SACR 310 (NC).
[2]
J
Kriegler
Hiemstra:
Suid Afrikaanse Strafproses
5 ed (1993)
at
160-161.
[3]
Nqumashe
(note 1 above) para 13.
[4]
Ibid
;
S
v Mohamed
1977 (2) 531 (A).
[5]
S
v EB
2010
(2) SACR 524
(SCA) para 5;
Mulala
v S
(074/2014)
[2014] ZASCA 103
(29 August 2014) para 11.
[6]
S
v Singo
2002
(4) SA 858 (CC).
[7]
Ibid
para 39.