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[2018] ZANCHC 71
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Magawu v S (CA&R28/2018) [2018] ZANCHC 71 (2 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: CA &R 28/2018
Heard
on 20/09/2018
Delivered on:
02/10/2018
In
the matter between
ZONISELO
RICHARD
MAGAWU
Applicant
And
THE
STATE
Respondent
JUDGMENT
PAKATI
J
[1]
The applicant, Mr Zoniselo Richard Magawu, applies for bail on new
facts pending finalisation of the trial scheduled to start
on 15
October 2018. He is one of six accused facing charges of murder,
kidnapping and offences relating to the Firearms Control
Act
[1]
.
He has been kept in custody since his arrest on 19 August 2016 and is
presently in the Kimberley Correctional Centre. The respondent
opposes the application.
[2]
It is common cause that murder is one of the offences listed in
Schedule 6 of the Criminal Procedure Act
[2]
(“the CPA”). It means therefore that the applicant bears
the
onus
to satisfy the court that exceptional circumstances exist which in
the interests of justice permit his release on a balance of
probabilities. Section 60 (11) (a) of the CPA provides:
‘
(11)
Notwithstanding any provision of this Act where an accused is charged
with an offence referred to –
(a)
In Schedule 6, the court shall order that the
accused be detained in custody until he or she is dealt with in
accordance with the
law, unless the accused, having been given
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.’
[3]
After his arrest the applicant applied for bail in the magistrate’s
court, Postmasburg, which was dismissed on 25 September
2016. He
brought another one on new facts which was also dismissed on 12
December 2016. He appealed against the said refusal and
it was
dismissed on 09 January 2017. On 13 November 2017 he brought a
pre-trial application which was dismissed on 17 November
2017.
[4]
The appellant placed the new facts by way of affidavits by himself,
Ms Spangenberg, his Psychologist, and an
ex parte
address by
his legal representative, Mr Pistorius. He states that he has
appeared in court on several occasions but the trial was
postponed
for various reasons
inter alia
, that he and his co-accused
were not ready to proceed with the trial due to the fact that their
legal representation was uncertain.
The trial was further delayed by
the interlocutory applications namely, bail applications, appeal and
pre-trial motion as alluded
to earlier.
[5]
In his affidavit the appellant alleges that his continued
incarceration prejudices his right to fair trial as a result of which
he suffers irreparable personal and physiological harm. Some of the
new facts that he relies on can be summarised as follows:
5.1 He is diabetic and a
chronic patient whose condition is exacerbated by the continued
incarceration. He has been hospitalised
and lost weight considerably.
His eyesight has also deteriorated;
5.2 He does not receive
the diabetic diet prescribed by his medical doctor and Correctional
Services does not provide same;
5.3 The medical doctor
diagnosed him of anxiety, depressed mood and a sleeping disorder. He
says he suffers constant headaches and
lower back pain which causes
depression. He has not received treatment for these problems save for
the sleeping tablets prescribed
by the doctor to alleviate his
sleeping disorder. The poor conditions in prison contribute to his
deteriorating physical and mental
condition. He constantly feels
tired and hopeless;
5.4 He has repeatedly
requested to consult with a psychologist but the prison officials
informed him that he is not entitled to
such intervention as he is
still awaiting trial;
5.5 The prison is
overcrowded and TB patients are placed in the same cell with non-TB
awaiting trial detainees. There is lack of
hygiene and floor spacing
is inadequate, no proper gym facility. He states that he suffers from
stress and anxiety which leads
to suicidal ideation;
5.6 He was segregated
twice with maximum sentence detainees as a form of punitive detention
without medical assessment in terms
of section 30 of the Correctional
Service Act 111 of 1988. He objected to this but to no avail.
[6]
The applicant adds that telephonic access with his legal
representative is limited and frustrates the preparation of his
trial.
The detainees are prohibited from using cell phones or any
electronic means of communication. According to him Mr Pistorius has
to travel from Pretoria for consultation and this has a financial
burden on him. He states that he prefers to have Mr Pistorius
as his
legal representative rather than make use of the services of the
Legal Aid South Africa. If he is not released on bail he
will not be
able to raise the necessary funds and effectively prepare for his
trial. This is so because the correctional facility
offers no
unlimited consultation with his legal representation which makes the
preparation of his defence virtually impossible.
As things stand, it
seems to him that he is forced to accept counsel appointed by Legal
Aid South Africa. Moreover, he claims that
he has not yet consulted
with any Legal Aid counsel and is concerned about the adequacy of
such counsel who is, according to him
less concerned about the
preparation of his case.
[7]
The applicant further states that the prison has inadequate
facilities for his legal representative to prepare for his trial
in
that he may not bring either documents or files. He contends that if
released on bail he would consult with his legal team anytime
and
anywhere.
[8]
The applicant submits that he has not been provided with the contents
of the docket. According to Mr H Cloete, counsel for the
State, the
contents of the docket was made available to the applicant during the
pre-trial application. The applicant in his bail
application on new
facts before the magistrate relied on its contents.
[9]
The applicant submits further that his family (wife and children) has
been negatively affected by his absence as their sole
provider. His
continued absence, so he argues, causes their relationship to
deteriorate to such an extent that they frequently
need counselling.
He alleges that Lt Col Louwrence and W/O Van der Merwe and other
police officials traumatise them as a result
of which his wife
suffers from emotional stress, panic attacks and fears abuse in their
hands. His family visits him from time
to time but the conditions are
not conducive for the minor children who are negatively affected. He
and his wife have decided to
discontinue their visits to avoid seeing
him in the emotional state that he is in. His wife applied for an
interdict against Lt
Col Louwrence for subjecting her to emotional,
verbal abuse, arbitrary arrest and detention on 23 February 2017.
[10]
The applicant states that during the previous bail application
hearings Lt Col Louwrence instigated some of the witnesses including
community members to create adverse atmosphere so that his bail
application would be unsuccessful. Notably, there were no community
members canvassing against his release when he appeared in this
court. The allegation of bias towards him by the investigation
team cannot stand after Williams J dismissed the pre-trial motion in
relation to the alleged conduct of W/O Van der Merwe. It is
undisputed that W/O Van der Merwe is currently not part of the
investigation team.
[11]
The applicant claims that if he remains in custody it would be
impossible to maintain his political office as an administrator
resulting in him losing the said position. He alleges further that if
granted bail he would adhere to bail conditions as he has
the utmost
respect for the criminal justice system. This allegation does not
hold water taking into account his previous convictions
and the
pending case against him which the State confirmed has not been
withdrawn.
[12]
In support of his psychological condition the applicant filed a
report compiled by Ms Tertia Spangenberg, a Clinical Psychologist,
dated 22 August 2018. In paragraph 3 of the said report she states:
‘
3. EVALUATION
During the evaluation Mr
Magawu was well orientated in terms of time, space and person. There
was no indication of confusion or
any other mental state that could
potentially alter his sense of reality or could cause reason to
question the validity of his
responses.
On Clinical observation
it was clear that he is of above average intelligence. Since I could
not conduct any psychometric testing,
I base this observation on 25
years’ experience of evaluating and observing people and being
able to deduct a person’s
level of functioning through
observation and evaluation.
It was clear that as the
evaluation progressed, he presented with signs of exhaustion and
anxiety when he related certain circumstances
and events. The anxiety
was concurrent with traumatic events that he experienced during the
timeline of events. The emotion portrayed
was synchronic with the
information provided at the time.’
[13]
In opposing the application the respondent placed evidence by way of
affidavit of Lt Col Louwrence, the investigating officer,
viva
voce
evidence of Ms Onica Lerato Manaka, the Head of Kimberley
Correctional Centre, and
ex parte
argument by Mr H Cloete, on
behalf of the State.
[14]
On 20 June 2018 the respondent filed a notice to oppose which records
its grounds for refusal of the release of the applicant
on bail which
I summarise thus:
14.1 The grounds do not
qualify as new facts;
14.2 The applicant’s
allegations are vague and unsubstantiated;
14.3 The allegations are
incorrect and facts relied upon irrelevant; and
14.4 The applicant failed
to lead evidence which satisfies the Court that exceptional
circumstances exist which in the interests
of justice permit his
release.
[15]
Ms Manake testified that during July/August 2018 she was on duty when
Ms Spangenberg visited the applicant at the correctional
centre. When
she was brought to her office Ms Manake informed her that as the head
of the facility she was unaware of any private
psychologist visiting
the applicant. She explained to her the procedure to follow when a
private psychologist visits a detainee.
She said that an application
by the detainee concerned should be made and handed to her. She would
then contact the psychologist
and an appointment would be arranged.
This is so because the facility has its own psychologist who had
consulted with the applicant
twice already. In this regard she
neither received a formal application from the applicant nor was an
appointment made with Ms
Spangenberg. Ms Manake told her that it
would be impossible to consult with him without a formal application
by the applicant.
Therefore it was unnecessary for her to contact the
centre until a formal application was made and fees for such service
were paid.
[16]
According to Ms Manake there was a stage when the applicant requested
to consult Dr Nhlapho, a private doctor, and a psychologist.
After he consulted with the said doctor he indicated that he did not
need to see the psychologist but would formally apply if he
changed
his mind, which he did not do.
[17]
Ms Manake testified that Dr Khantani prescribed the applicant’s
treatment for diabetes. During her testimony it became
apparent that
the applicant has a good relationship with her. She immediately
attends to his complaints. It also transpired that
he has confidence
in her and is comfortable talking to her about his personal and
family issues.
[18]
Ms Manake states that the applicant had a problem with Mr Morgan, the
kitchen supervisor, which involved his diet that had
to include
starch despite the doctor’s instructions that it should be
starch free. She intervened and changed his diet to
accommodate his
demand.
[19]
Regarding access to legal representation Ms Manake explained that
legal representatives have access to the detainees and are
allowed to
bring their files, books including laptops during consultation. She
disputes that there is inadequate facility for a
detainee to consult
with his/her legal representative.
[20]
Section 35 (2) (b) of the Constitution provides that everyone who is
detained including every sentenced prisoner has the right
to choose
and to consult with a legal practitioner and to be informed of this
right promptly.
[21]
Ms Manake testified further that the applicant was twice found in
possession of a cell phone in contravention of the prison
rules. That
was when he was housed in A Unit. After the cell phone incidents he
was moved to segregation unit. She explained this
as a unit where
maximum offenders and those who infringe prison policies are kept. It
is a single cell where a detainee is kept
alone for his/her safety
and protection. During November/December 2017 while in segregation
the applicant engaged in a hunger strike
but Ms Manake successfully
talked him out of it and he was removed from the said unit.
[22]
The appellant is required to establish that exceptional circumstances
exist which in the interests of justice permit his release
on a
balance of probabilities. In
S
v RUDOLPH
[3]
Snyders JA, as she then was, had this to say about exceptional
circumstances:
“
[9] The section
places an onus on the appellant to produce proof, on a balance of
probability, that ‘exceptional circumstances
exist which in the
interests of justice permit his’ release. It ‘contemplates
an exercise in which the balance between
the liberty interests of the
accused and the interests of society in denying the accused bail,
will be resolved in favour of the
denial of bail, unless “exceptional
circumstances” are shown by the accused to exist’.
Exceptional circumstances
do not mean that ‘they must be
circumstances above and beyond, and generally different from those
enumerated’ in ss
60 (4) – (9). In fact, ordinary
circumstances present to an exceptional degree, may lead to a finding
that release on bail
is justified.”
[23]
In
S v
MAUK
[4]
the Court held:
“
When it falls to
be considered whether an accused has succeeded in establishing
‘exceptional circumstances’, as
contemplated in
s
60
(11) (a) of the
Criminal Procedure Act 51 of 1977
, ie which permit
his release in the interests of justice, it is a misdirection to
adopt one or more of the following approaches:
(a) insofar as the
strength of the State’s case arises for consideration, (b) to
require that the State’s case must
be exceptionally weak before
‘exceptional circumstances’ can be found to exist, ie, to
equate a higher degree of proof
of the accused than proof on a
balance of probabilities; and (c) to give no consideration to the
need of the State to adduce rebutting
evidence.
An accused will succeed
in proving ‘exceptional circumstances’ if he is able to
show, by adducing acceptable evidence,
that the State’s case
against him is non-existent, or subject to serious doubt. Where the
accused’s evidence stands
alone, then the suggestion that the
State’s case is non-existent or doubtful becomes almost a
forgone conclusion. If the
State does not lead evidence in rebuttal,
it is difficult to see how it can be said that the accused has not
succeeded in discharging
the
onus
.
The fact that the evidence before court is infused with probabilities
indicating that the accused may have been falsely implicated,
especially where the State has adduced no significant rebutting
evidence (as
in casu
),
can scarcely be regarded as anything other than exceptional.”
[24]
The concept ‘interests of justice’ as used in
s 25
(2)
(d) of the interim Constitution is not defined and it means nothing
more than the usual factors which ought to be taken into
account in
bail application.
[5]
In
S
v DLAMINI; S v DLADLA AND OTHERS; S v JOUBERT; S v JOUBERT; S v
SCHIETEKAT
[6]
the Constitutional Court states:
“
[48] That must
also be the sense in which ‘the interests of justice’
concept is used in sub-s (4). That subsection actually
forms part of
a functional unit with sub –ss (9) and (10). Between them they
provide the heart of the evaluation process
in a bail application, ss
(9) being predominant. If it is read first and ‘the interests
of justice’ bears the same
narrow meaning akin to ‘the
interests of society’ (or the interests of justice minus the
interests of the accused),
the interpretation of the three
subsections falls neatly into place. The opening words of ss (9) (‘in
considering the question
in ss (4)’) refer to the question
whether bail should be refused. That question, so the presiding
officer is told, is to
be answered by weighing up the societal
interests listed in ss (4) and detailed in ss (5) to (8A) against the
personal interests
adverted to in ss (9). And whatever the parties
may contend, ss (10) obliges the presiding officer to ultimately
assume responsibility
for that evaluation.”
[25]
The proven circumstances have to be weighed in the interests of
justice. According to Comrie J “the true enquiry is whether
the
proven circumstances are sufficiently unusual or different in any
particular case as to warrant the applicant’s release.
And
‘sufficiently’ will vary from case to case”. When
an accused adduces sufficient evidence of innocence and
such evidence
is so strong that it can be said that he has reasonable prospects of
success at his trial, he has established “exceptional
circumstances”.
[7]
[26]
The issue to be determined is whether the factors advanced by the
applicant including the psychological report by Ms Spangenberg
in
support of his application for release constitute exceptional
circumstances. The applicant also has to prove that the interests
of
justice justify his release.
[27]
It is undisputed that the State has been ready to proceed with the
trial as early as March 2017. The State disputes that the
applicant
is severely physically and mentally affected by the continued
incarceration due to diabetes, post traumatic depression
and anxiety
disorder. However, it alleges that there is a possibility that the
applicant suffers emotional and financial stress
due to the continued
incarceration but that should be considered in the light of the fact
that he still receives his salary and
faces serious charges.
[28]
In her report Ms Spangenberg states that the purpose of the
assessment ‘
was to determine whether there is psychological
motivation to recommend that bail be granted to Mr Magawu in his
upcoming bail hearing
in the High Court of South Africa.’
In
assessing the applicant she took into account the effect of ‘
his
emotional state on his health, as well as the effect of the already
long term captivity on his psychological state on his emotions
and
psychiatric health’
.
[29]
Notably, Ms Spangenberg does not disclose her sources of information
which she says were consistent with the information given
by the
applicant. In paragraph 4 of her report she records:
“
During an
assessment, consistency is an important aspect regarding the
truthfulness of information provided, especially when a long
period
of time has expired. Inconsistency is an indication of selective
memory and is often a reason to question the truthfulness
of
information supplied.”
It
is unclear what information is referred to that is consistent or
inconsistent with the information given by the applicant as
what the
applicant mentioned to her is referred to as “
an
abbreviated version of events up until the time that I interviewed
him”
[30]
Before this matter was argued Mr Pistorius handed to me three
affidavits by himself, Mr Andre Potgieter and Ms Spangenberg
(Annexures “H”, “I”, and “J”)
respectively stating that he was accused by the prison officials
of
misrepresenting himself as a psychologist and Ms Spangenberg as an
attorney.
[31]
In her affidavit Ms Spangenberg confirmed that in previous occasions
she never experienced problems accessing the applicant.
The prison
officials co-operated with her. Taking into account that the three
affidavits were handed in just before the matter
was argued, the
State could not dispute the incidents mentioned therein. However, Mr
Cloete indicated that those were isolated
incidents due to some
misunderstanding. There is no allegation by Ms Spangenberg that she
followed the said procedures and still
experienced difficulty
consulting with the applicant. The fact that she compiled the report
is reason enough to conclude that she
extensively consulted with him.
[32]
The applicant alleges that the Department of Correctional Services
does not have the capacity to address his concerns for example,
(a)
there is lack of adequate and professional nutrition; (b) the cell
wherein he is kept is overcrowded; (c) He sleeps on the
floor; (d) He
does not have access to the toilet and/or has to share one with
twenty three other detainees; (e) He is exposed to
TB patients in a
cell that accommodates more detainees than it can actually take; and
(f) the condition of the cell is generally
inhumane.
[33]
According to the applicant his right to integrity, freedom from
torture, inhuman detention, degrading treatment and dignity
are
rights protected by the Constitution. He states further that the
prison facility violates these rights thereby affecting his
right to
a fair trial. Be that as it may, he has decided to refrain from
engaging in an expensive litigation with the department
in order to
enforce his constitutional right to dignity, freedom and integrity.
[34]
These rights are protected against anyone who seeks to undermine
them. Section 35 (2) (e) of the Constitution states that:
‘
(2)
Everyone
who is detained, including every sentenced prisoner, has the right-
…
(e) to conditions of
detention that are consistent with human dignity, including at least
exercise and provision, at state expense,
of adequate accommodation,
nutrition, reading material and medical treatment.
(f) to communicate with,
and be visited by, that person’s-
…
(iv) chosen medical
practitioner.’
[35]
Comrie AJA in
S
v VAN WYK
[8]
held:
‘
The function of
the court in a bail application is to prima facie determine the
relative strength of the State’s case and
not to make
provisional finding of guilt or innocence.
Insofar as an accused
does not receive proper medical attention whilst in detention, she or
he has other legal remedies at her or
his disposal and, in general
bail is not the remedy for the actions and omissions of the prison
authorities. What remains important
is the fact that the restrictions
of her or his detention and attendance at the trial are not ideal for
a person in a weak physical
condition. Naturally the interference
with her or his freedom is an important factor which has to be given
much weight when deciding
on the interests of justice, but the
medical condition of the accused must be weighed against other
factors and must not be considered
in isolation.’
[36]
Mbenenge AJ in
S
v MPOFANA
[9]
held that:
“
Upon a proper
construction of s 35 (2) (2) and (f) of the said Constitution, one
whose detention has been pronounced lawful and
in the interests of
justice cannot simply resort to a further bail application merely
because he has been detained under inhumane
and degrading conditions
or on the ground that his right to consult with a doctor of his own
choice has been infringed. It is,
however available to such person
firstly to apply to the prison authorities concerned and call upon
them to remedy whatever complaints
he/she has with regard to the
conditions of his/her detention. Should the prison authorities fail
to remedy such complaints, it
is available to the detainee concerned
either to challenge the detention before a court of law as being
unconstitutional or obtain
a court interdict to force the prison
authorities to comply with the law.”
[37]
Van Zyl J in
S
v PETERSEN
[10]
expressed
the following view regarding new facts:
“
[57] When, as in
the present case, the accused relies on new facts which have come to
the fore since the first, or previous, bail
application, the court
must be satisfied, firstly, that such facts are indeed new and
secondly, that they are relevant for purposes
of the new application.
They must not constitute simply a reshuffling of old evidence or an
embroidering upon it. See
S v De Villiers
1996 (2) SACR 122
(T) at 126
e-f
.
The purpose of adducing new facts is not to address problems
encountered in the previous application or to fill gaps in the
previously
presented evidence.
[58] Where evidence was
available to the applicant at the time of the previous application
but, for whatever reason, was not revealed,
it cannot be relied on in
the later application as new evidence. See S v Le Roux en Andere
1995
(2) SACR 613
(W) at 622a-b. If the evidence is adjudged to be new and
relevant, then it must be considered in conjunction with all the
facts
placed before the court in previous applications, and not
separately. See
S v Vermaas
1996 (1) SACR 528
(T) at 531
e-g
;
S v Mpofana
1998 (1)
SACR 40
(Tk) at 44
g
-45
a
;
S v Mohammed
1999 (2)
SACR 507
(C) ([1999]
4 All SA 533)
at 511
a-d
.”
[38]
In paragraph 3 of his replying affidavit the applicant states that Ms
Spangenberg completed a comprehensive psychological report
taking
into account his ‘
current poor mental health’.
Ms
Spangenberg concedes that certain important and standard findings in
this kind of evaluation could not be taken into account.
It is
unclear what she meant when she said:
‘
It is clear that
as the evaluation progressed, he [the applicant] presented with signs
of exhaustion and anxiety when he related
certain circumstances and
events. The anxiety was concurrent with traumatic events that he
experienced during timeline of events.
The emotions portrayed were
synchronic with the information provided at the time.’
[39]
According to the internal memo compiled by Mr Sibisi of Kimberley
Correctional Centre the TB patients complained of by the
applicant
were kept in isolation for a period of two months under treatment
until they tested negative. He states that in the communal
cell
wherein the applicant is kept there are twenty four awaiting trial
detainees and that is the basic bed accommodation. His
glucose levels
had been tested and monitored and found to be normal. He was also
unable to rebut the reports of Ms Kgobi and Mr
Sibisi.
[40]
The applicant informed Ms Spangenberg that the diabetic diet was not
provided to him. This information cannot stand in the
face of Ms
Manake’s testimony that the applicant’s diet was
prescribed by the doctor and the prison officials adhered
to it until
he demanded that mealie-pap be added in it despite the doctor’s
instructions that it should be starch free. He
did not lead evidence
challenging the fact that the prison officials were aware of his
condition and catered for his needs. Ms
Manake testified that in
trying to comply with the doctor’s instructions regarding his
diet, taking into account the applicant’s
demands, they had to
reduce his vegetable intake.
[41]
The information compiled by Kimberley Correctional Centre dated 29
June 2018 is detailed and shows that since the applicant
arrived from
Kuruman Correctional Centre on 24 January 2017 he consulted with
their in-house doctor who recorded his diabetic condition
as stable.
Even the treatment that was prescribed is recorded in his medical
file. His complaints concerning his health were also
recorded
together with the prescribed medication. The prison officials ensure
that he is well taken care of.
[42]
What is significant from this passage is that Ms Spangenberg depended
on the say so of the applicant and there is no detail
of what she was
informed. There is also no basis for her conclusions. She relies on a
once-off evaluation with no follow up. She
states that the
applicant’s concentration and memory are markedly impaired and
that his ability to properly prepare for trial
is even impaired. This
is in stark contrast with what is stated earlier regarding his mental
state
(
see paragraph 12
supra
). The only reasonable
inference that can be drawn from the assumptions arrived at by the
Psychologist is that the applicant was
not candid with her. I say so
because the information given to her was not verified from the prison
authorities. The report is
silent about taking into account any other
factors save for the applicant’s personal circumstances. Her
recommendation that
the applicant be released on bail is seen in the
context of the initial purpose as to why the report was compiled. The
report is
clearly not objective and contradicts the objective facts
of this matter.
[43]
The applicant did not seriously challenge the State’s
allegation that there is a strong case against him. Horn JA in
S
v JONAS
[11]
held that the appellant would succeed in doing if he is able to show
by adducing acceptable evidence that the State’s
case against
him is non-existent or subject to serious doubt. This is not the case
in the instant case. The applicant did not allege
that the material
aspects on the merits of the case, especially those relied upon by
the respondent, are factually incorrect. For
instance he alleges that
the section 204 witness
[12]
made various contradictory statements. He says that the respondent
relies on hearsay and fabricated statements of witnesses. This
allegation is unsubstantiated.
[44]
In terms of s 60 (11) of the CPA the appellant has to adduce adequate
evidence to satisfy the court that he is entitled to
release on bail.
No argument was advanced that the case against him is weak or
non-existent which would probably result in his
acquittal during the
trial. He merely proclaims his innocence and that it is in the
interests of justice that he be released on
bail. Lt Col Louwrence
testified in detail concerning the evidence against the applicant
during the previous bail application.
Though he had an opportunity to
do so, the applicant did not place any evidence in rebuttal. The
State disputes that the investigating
officer linked the applicant to
the crimes by fingerprint evidence. If that was the case, this should
have been brought to the
attention of the court during the bail
application in December 2016.
[45]
Incarceration, under normal circumstances, affects anyone lawfully
detained who is presumed innocent until proven
otherwise.
It is not a pleasant experience as it affects those concerned
emotionally, physically and otherwise. It also affects
those persons
close to the detainee. The allegation that the appellant’s wife
was traumatised by Lt Col Louwrence and an
interdict was sought
against him for verbal torture, harassment, emotional abuse and
subjecting her to arbitrary arrest was not
corroborated by his wife.
Moreover, no interdict was served on him advising him of the said
allegations.
[46]
In his founding affidavit the applicant concedes that he has access
both to medical doctors and legal representatives of his
choice. In
this regard I consider the fact that previously Ms Spangenberg
experienced co-operation during her consultation with
the applicant
on 11 August 2018, hence she managed to compile the report. I also
take into account the evidence of Ms Manake regarding
the procedure
to be followed in respect of visits by private medical doctors and
legal representatives. This also goes for the
misunderstanding that
took place when Mr Pistorius and Ms Spangenberg visited the prison
looking for the applicant.
[47]
The applicant alleges that if he is kept in custody he will not be in
a position to secure funding for his legal representative
and prepare
for his trial. He does not play open cards with the court and mention
how he intends to source funds for such a long
trial when released on
bail in a space of almost two weeks before the trial commences
especially when he could not do that in two
years. There is no
indication whether Mr Pistorius would be available to continue with
the trial from 15 October to 14 December
2018 as scheduled.
[48]
The applicant alleges that he is not properly prepared for his trial
because he has not consulted with the legal representative
appointed
by Legal Aid South Africa. It is so that every detainee has a right
to choose and consult with his/her legal practitioner
and to be
informed of this right promptly. If such detainee has no funds he has
a right to have a legal practitioner assigned to
him/her by the State
and at State’s expense,
if
substantial injustice would otherwise result
,
and to be informed of this right promptly.
[13]
It does not mean that a legal practitioner appointed by the State
does not do justice to their clients. Most detainees who cannot
afford legal representation of their choice opt for counsel appointed
by the State and they appear in our courts on a daily basis
facing
serious charges. There has never been an implication that they are
not afforded fair trials. The treatment will not be different
to the
applicant
in
casu
and
he will suffer no prejudice. (My underlining)
[49]
Regarding consideration of the new facts it is clear that none of the
facts raised by the applicant are new save for the deterioration
of
his medical condition. Although that may be so no medical reports
accompany his application to confirm this version. Notably,
he was
treated by the in-house and private doctors. His medical condition
cannot be considered in isolation but must be weighed
against other
factors in order to ascertain whether the interests of justice would
be served if he is released on bail. His medical
condition should be
compared with the detailed information provided by the prison
authorities regarding his treatment, diet, medication,
and his
physical condition and dates that he was regularly monitored. The
report compiled on behalf of the Correctional Services
Centre is
inconsistent with his assertion that his mental health is currently
poor. In my view, he exaggerates his condition. His
failure to attach
relevant medical reports in support of his alleged deteriorating
medical condition compromises his application
as he bears the
onus.
Mere and vague assertions are insufficient.
[50]
It is of great significance to consider that the trial in this matter
is due to commence in a few days. Dambuza J stated in
S
v NAJOE
[14]
thus:
“
[14] It is true
that any length of time spent by an innocent person in custody is too
long, and that the applicant has already spent
over a year in
detention. Reubenheimer’s evidence was that the police
investigations in this matter were finalised in three
weeks. The
delay in bringing the matter to trial is neither the fault of the
state nor that of the defence. The problem is congestion
of the court
rolls. As things stand, the case will go to trial on 12 September
2012, just over three months from now.”
[51]
In the instant case the State was ready to proceed with the trial as
early as March 2017 as alluded to earlier. According to
Mr Cloete
full discovery of the docket had been made at that stage already. The
trial is scheduled to start in twelve day’s
from the date of
this order. This matter has to come to finality in the interests of
everyone concerned. This is also conceded
by the applicant.
[52]
Mr Cloete submits that the real reason why the applicant requests
release on bail is to seek a postponement once he is out
on bail
under the guise of sourcing funding for his legal representative.
This was disputed by the applicant. The State’s
submission is
not far-fetched though because it seems impossible for the applicant
to source funds for his trial in about 12 days
from now. He does not
take this Court into his confidence and say how this is possible.
[53]
In the context of s 60 (11) (a) of the CPA the exceptionality of the
circumstances must be such as to persuade a court that
it would be in
the interests of justice to order the release of the accused person.
This may, of course, mean different things
to different people, so
that allowance should be made for certain measure of flexibility in
the judicial approach to the question.
[15]
[54]
I am not satisfied that the facts raised by the applicant are new and
that the psychologist report does not establish exceptional
circumstances for reasons already advanced. I am also not persuaded
that he has discharged the
onus
resting on him to prove on a
balance of probabilities that the interests of justice permit his
release on bail.
[55]
The application is dismissed.
______________
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Applicant: Adv PF Pistorius
Instructed
by: Andre Potgieter & Partners
On
behalf of the Respondent: Adv H Cloete & Adv K Ilanga
Instructed
by: Director of Public Prosecutions
[1]
Act 60 of 2000
[2]
Act 51 of 1977
[3]
2010 (1) SACR 262
(SCA) para [9]; See also S v Botha en n’
Ander
2002 (1) SACR 222
(SCA) para [21] and S v Dlamini para [20]
[4]
1999 (2) SACR 479
(W) 481j – 482d
[5]
Commentary on the
Criminal Procedure Act by
Du Toit
et
al
at 9-31
[6]
[1999] ZACC 8
;
1999 (4) SA 623
(CC) para [48]
[7]
Commentary on the
Criminal Procedure Act by
Du Toit et al
[8]
2005 (1) SACR 41
(SCA) at 42b-d
[9]
1998 (1) SACR 40
(Tk) at 45f-h
[10]
2008 (2) SACR 355
(C) paras [57] & [58]; see also S v
Nwabunwanne
2017 (2) SACR 124
(NCK) para [24]
[11]
1998 (2) SACR 677
at 679h
[12]
S 204
of the
Criminal Procedure Act, 51 of 1977
[13]
Section 35 (2) (c) of the Constitution
[14]
2012 (2) SACR 395
(ECP) at para [14]
[15]
S v Petersen (supra) at para [56] and cases quoted therein