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[2017] ZAGPPHC 831
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Molokomme v S (A866/16) [2017] ZAGPPHC 831 (3 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
3/2/2017
CASE
NO: DP 9/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THAPELO
RAYMOND
MOLOKOMME
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MAKGOKA,J
[1]
This is an appeal against the refusal of bail by the regional court,
Pretoria. The appellant faces two counts of murder, read
with
section
51
of the
Criminal Law Amendment Act 105 of 1997
. He is charged with
two others, Ms.Bonolo Lekalalala (accused 1) and Mr Kgaugelo Rapelego
(accused 3). The appellant is thus accused
2. The case has been
transferred from the regional court to this court for trial from 24
April to 12 May 2017. The charges against
the appellant and his
co-accused arise from the death of Mr Jacobus Beetge and his wife,
Mrs Eva Beetge, on 26 December 2015. Mrs
Beetge was the mother of
accused 1, and Mr Beetge was her step-father. The deceased lived in
Capital Park, Pretoria. Accused 1
did not live with her parents, but
lived in Atteridgeville. It is alleged that accused 1 is the
masterminded the death of her parents
for financial gain, and that
she solicited the assistance of the appellant and accused 3 to kill
them and dispose of their body.
The three were arrested in January
2016.
Schedule
6 offence and the onus
[2]
As the appellant and his co-accused are charged with pre-mediated
murder in terms of
s 51
of the
Criminal Law Amendment' Act 105 of
1997
, it was common cause that the offence fell within the purview of
schedule 6 to the Criminal Procedure Act 51 of 1977 (the CPA).
That
is relevant to the degree of onus which lies on the appellant. In
terms of s60(11)(a) of the CPA, where an accused is charged
with an
offence referred to 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. The onus
is discharged on a
balance of probabilities
[1]
.
Refusal
of bail
[3]
The state opposed the release of the trio on bail. It is not clear
from the record of proceedings as to when the three first
applied for
bail, but on 15 March 2016 accused 1 abandoned her bail application.
The appellant and accused 3's bail applications
were dismissed on 25
April 2016. On 10 August 2016 accused 1 was granted bail in the
amount of R3000. I shall later revert to the
circumstances under
which bail was granted to her. Aggrieved with the decision refusing
him bail, the appellant now appeals to
this court in terms of
s65(1)(a) of the CPA against the decision of the regional court.
General
observations
[4]
The following general observations are apt before considering the
appeal.
The
common law and the Constitution demand equilibrium between the
importance of freedom and the broad interests of justice. The
primary
objective of the criminal process regarding the phase before the
trial is to bring the accused before a court and there
to confront
him or her with the allegations of the prosecution. For that reason,
the court gives its support, where necessary,
to steps aimed at
preventing flight, obstruction of the police investigation,
interference with state witnesses or concealment/destruction
of real
evidence. The courts have done this by means of bail conditions and
criteria which have been thrashed out judicially over
the years. See
Kriegler
Hiemstra's
Criminal Procedure
,
Issue 1, 9 - 2.
Legislative
framework and jurisprudence
[5]
It is prudent also to consider the legislative framework before I
consider the merits of the appeal. Section 60 of the CPA is
of
particular relevance, especially sub-sections (4) - (9), as they
provide a broad framework within which a bail application should
be
considered. Section 60(4) provides that the interests of justice do
not permit the release from detention of an accused where,
if so
released, there is a likelihood of any of the following:
(a)
The accused will endanger the safety of the public or any particular
person, or will commit a schedule 1 offence;
(b)the
accused will attempt to evade his or her trial;
(c)
the accused will attempt to influence or intimidate the witnesses or
to conceal or destroy the evidence;
(d)the
accused will undermine or jeopardise the objectives or the proper
functioning of the criminal justice system, including the
bail
system;
(e)
the release of the accused will disturb the public order or undermine
the public peace or security.
[6]
Sections 60(5) - (9) provide practical guidelines which a court may
consider whether any of the grounds set out in s 60(4)(a)
- (e) has
been established. In
S v
Mabena and Another
[2]
the court summarized the above legal
framework as follows:
'Five grounds are listed
upon which, if established, 'the interests of justice do not permit
the release from detention of an accused'.
Two of those grounds
concern the impact that the granting of bail might have upon the
conduct of the particular case. The remaining
three concern the
impact that the granting of bail might have upon the administration
of justice generally and upon the safety
of the public. Then follows
an extensive and detailed list of what were described in Dlamini as
'the potential factors for and
against the grant of bail (the various
factors contained in ss 60(5) - (9)) to which a court must have
regard' in considering where
the interests of justice lie
[3]
.
Before a court may grant
bail to a person charged with such an offence it must be satisfied,
upon an evaluation of all the factors
that are ordinarily relevant to
the grant or refusal of bail, that circumstances exist that warrant
an exception being made to
the general rule that the accused must
remain in custody... '
[7]
In
Hiemstra's Criminal
Procedure
Issue 2, 9 - 11,
the learned authors make a useful summary of the principles on the
concept of 'the interests of justice' as set
out in s60(4):
'Although this subsection
contains a considerable number of specific stipulations, the essences
of the principles and considerations
underlying bail is simply that
no-one should remain locked up without good reason. The interests of
justice are still favour of
protecting the freedom of the citizen
rather than depriving him or her of that freedom (
S
v Visser
1975
(2) SA 342
(C);
S
v Bennett
1976
(3) SA 652
(C);
S
v Smith
1969
(4) SA 175
(N) at 177E-F). The court hearing the bail application
must express a balanced valued-judgment taking into account the
factors
mentioned in subsection (4). The reasons for refusal of bail
can usually be found in one of two considerations, or both: (I) will
the accused abscond; and (2) will the granting of bail lead to
interference with the investigation and/or prosecution? These
considerations
entail a projection of future conduct taking into
account past conduct (S v Thornhill (2) 1998 {I) SACR 177 (C) at
182e-g). A court
cannot find that the refusal of bail is in the
interests of justice merely because there is a risk or possibility
that one or more
of the consequences mentioned in subsection (4) will
result. The court cannot grope in the dark and speculate; a finding
on the
probabilities must be made. Unless it can be found that one or
more of the consequences will probably occur, detention of the
accused
is not in the interests of justice and the accused should be
released (S v Swanepoel supra 313d-f).'
Proceedings
in the regional court
[8]I
turn now to the merits of the appeal. In support of his application
to be released on bail, the appellant, who was 24 years
old, tendered
an affidavit, and did not testify. The state led the evidence of the
investigating officer. In his affidavit, the
appellant stated the
following. He resided in Atteridgeville. He did not own any immovable
property. He was unmarried, but has
a child who was born in January
2016, whom he maintained. He operated a small business repairing
computers and electric appliances,
generating an average income of R3
000 per month. His incarceration would jeopardise his business and
his ability to support his
child.
[9]
With regard to the merits of the case, he intended pleading not
guilty to the charge of murder. According to him, he and accused
3
were called by accused 1 to her place on 26 December 2015 at
approximately 21h00. Upon arrival at accused 1's place, they found
the bodies of the deceased lying on the floor. Accused 1 informed
them that she had poisoned them, but was not certain whether
they
were dead. She requested them to assist her to dispose of their
bodies and promised to pay them an amount of R250 000 each
for their
assistance. They agreed and placed the bodies in Mr Beetge's vehicle
and drove to the Hennops River, into which they
threw the bodies. The
following day, accused reported the deceased as missing persons. He
was arrested on 7 January 2016.
[I0]
In opposing bail, the state led the evidence of the investigating
officer, Sergeant Johanna Putter, who testified that the
bodies of
the deceased were discovered in Hennops River on 27 December 2015.
According to her, accused 1, when questioned about
the circumstances
of her parents' death, she confessed to the police that she killed
them with the assistance of the appellant
and accused 3. This led to
the arrest of the appellant and accused 3. Accused 1 provided further
details of how the murders were
planned and carried out. Accused 1
informed the police that the appellant was her boyfriend. On
Christmas day 2015 she had an argument
with her mother. Later that
day she informed the appellant of her plan to kill her parents. They
went to accused 3's place where
they planned the murder.
[11]
On 26 December 2016 she and the appellant went to Atteridgeville in
search of poison, but were unsuccessful. Accused 1 boarded
a taxi to
the city where she bought rats poison, after which she went to her
parents' house where she spiked the rat poison in
the drinks which
she offered them. At approximately 20h00 the appellant called her and
requested her to switch off the main electricity
supply to the house,
and to put the dogs aside and meet him and accused 3 outside the
house, which request she complied with. The
three of them entered the
house through the front door. Once inside the house, they strangled
her to death. Mr Beetge was hit with
a brick on the face while still
asleep, and strangled with a laptop charger cable to also strangle
him.
[12]
The three of them loaded the bodies into the vehicle. The appellant
and accused 3 drove off whilst she remained at the house.
Upon their
return, they took Mr Beetge's bank card and withdrew an amount of
R500 from his account at an automated teller machine
(ATM). Accused 1
further informed the police that she was the sole heiress to the
estate of her parents. She promised each of the
appellant and accused
3 an amount of R35 000 for their role in the murders, although this
never materialised.
[13]
Sergeant Putter further testified that the appellant and his
co-accused had sold some of the deceased's property. They had
also
cleaned the house in order to destroy the evidence. Furthermore, the
appellant had made some pointings out, not only of the
place where
the bodies were discovered, but also of the house of the deceased
where the murders occurred. His finger prints had
also been found at
the house. The appellant had also made a confession, which is
corroborated by the objective evidence. That concluded
the evidence
in the regional court.
[14]
In its judgment the regional court considered the following three
factors as militating against the release of the appellant
on bail.
First, that the appellant appeared to be a flight risk, from the fact
that he did not own any immovable property, and
therefore nothing
prevented him from gathering his personal possessions and absconding.
She further considered the fact that the
tendered amount of Rl 000
could easily.be forfeited, when weighed against the likely punishment
to be imposed upon conviction.
Considering all these factors, the
regional magistrate took a view that the appellant's chances of not
standing trial were increased.
[15]
Second, the regional court considered the strength of the state's
case against the appellant, in light of his confession, the
paintings-out, the finger print evidence and all the
corroborative evidence. As stated earlier, the prima facie strength
of the state's case against an accused is a factor a court may
consider, in determining whether there is the likelihood that that
the accused, if released on bail, he or she will attempt to evade his
or her trial, as stated in s 60(4)(b). Even before the enactment
of
s60 of the CPA, our courts have over the years accepted that where
there is a strong prima facie case against an accused, this
is a
factor which the court has to take into consideration in deciding
whether it is in the interests of justice for an accused
to be
released on bail.4 However, this does not mean that the strength of
the State's case is the all pervasive factor. It
simply means
that it is a factor that has to be considered together with others.
What the court is called upon to do is an examination
of all the
relevant factors, not individually, but as a whole, in determining
whether an accused has established that the interests
of justice
permits his or her release on bail
[4]
.
In the evaluation of the relative strength of the state's case in the
present case, the regional court cautioned itself against
making a
provisional finding of guilt, and properly heeded the injunction in
S
v Viljoen
[5]
that a bail hearing turning into a
dress rehearsal for the trial.
[16]
The court was also mindful of the appellant's indication that he
intended to challenge the admissibility of the confession
and
pointings-out. The court correctly remarked that there is a dispute
about admissibility, the appellant had not demonstrated
how the
confessions and the pointings-out were inadmissible or unreliable. In
other words, no basis has been suggested why those
were likely to be
ruled inadmissible by the trial court. During argument, counsel for
the appellant recognised this difficulty,
but nevertheless pointed
out that the basis would be that the appellant had been assaulted
into making the confession and the pointings-out.
For this, counsel
relied on an entry in the charge sheet diary on 5 August 2016 which
reads:
'Accused 2 [appellant]
says on 7 January 2016 he was assaulted by [a] police officer. He is
living on painkillers - police who arrested
him. J7 will indicate
accused 2 needs medical attention.’
[17]
There are two glaring difficulties with this proposition. The first
is that allegation was never made to the court hearing
the
application. As indicated earlier, the appellant's application for
bail was refused on 25 April 2016, and the allegation was
made only
in· August 2016, long after bail was refused. Furthermore,
there is no indication of a connection between the
allegations of
assault, the confession and the pointings-out. I therefore conclude
that nothing really turns on this aspect.
[18]
Third, the court considered the likelihood that the appellant, if
released on hail, will attempt to influence or intimidate
witnesses
or to conceal or destroy evidence. In this regard, the regional
magistrate considered the state's evidence that after
the deceased
were murdered, their bodies were dumped in a river and the appellant
and his co-accused cleaned the house and the
vehicle to destroy the
evidence. She considered these factors to be strong indicators that
the appellant, if released on bail,
was likely to conceal or destroy
the evidence.
[19]
On the basis of the above, the regional magistrate came to the
conclusion that the appellant had not discharged the onus on
him to
satisfy the court that exceptional circumstances existed, permitting
his release on bail.
Approach
on appeal
[20]
In considering this appeal, the lodestar is s 65(4) of the CPA, which
provides that the court or Judge shall not set aside
the decision
against which the appeal is brought, unless such court or Judge is
satisfied that the decision was wrong, in which
event the court or
Judge shall give the decision which in its or his/her opinion the
lower court should have given in
S
v Barber
[6]
the context of deciding an appeal in
terms of s65(4) was explained:
'It is well known that
the powers of this court are largely limited where the matter comes
before it on appeal and not as a substantive
application for bail.
This court has to be persuaded that the magistrate exercised the
discretion which he has wrongly. Accordingly,
although this court may
have a different view, it should not substitute its own view for that
of the magistrate because that would
be an unfair interference with
the magistrate's exercise of his discretion... [I]t should be
stressed that, no matter what this
court's views are, the real
question is whether it can be said that the magistrate who had the
discretion to grant bail exercised
that discretion wrongly.'
[21]
In
S v Porthern and
others
[7]
,
Binns-Ward AJ considered the above dictum in the context of s 60(11)
and concluded, with reference to
S
v Botha en 'n ander
[8]
,
that the appeal court's power to intervene in terms of s 65(4) of the
CPA is not strictly confined as suggested in Barber, above,
and that
the appeal court can undertake its own analysis of the evidence and
come to its conclusion whether the appellant had discharged
the onus
in terms of s 60(11).
[22]
On a consideration of all the factors, I find no fault in how the
regional court considered the appellant's bail application.
In
particular, I am persuaded that the regional court's reasoning and
conclusions are wrong. On the contrary, I am of the view
that the
learned regional magistrate carefully considered all the factors
relevant to the appellant's bail application. It is the
right of the
appellant to adduce evidence by means of an affidavit to discharge
the onus resting on him. However, as correctly
pointed out by the
regional court, oral evidence, which the state adduced and was tested
under cross-examination, carries more
weight than the evidence
tendered by way of affidavit. There is nothing in the personal
circumstances of the appellant placed before
the court, or the facts
of the case, constitutes, either individually and cumulatively,
exceptional circumstances. The appeal should
therefore fail.
[23]
It remains to consider a final aspect. That relates to the granting
of bail to accused 1. It appears that all three - accused
1, the
appellant and accused 3 - brought formal bail applications shortly
after their arrest in January 2016. It appears that the
bail
applications were jointly heard over a period of time. On 15 March
2016 accused 1 abandoned her bail application. The entry
in the
charge sheet diary reads:
'Accused I abandons bail application
due to no address.'
[24]
On 28 July 2016 the three accused appeared before court. Accused 1's
legal representative requested a postponement of the matter
to for
accused 1's father to 'give an alternate address.'
Postea
,
accused's father was present in court and it is noted that he gave
the address to the prosecutor, and that accused 1 wished 'to
bring a
further bail application.' The matter was remanded to 5 August 2016.
On 10 August 2016 accused 1 appeared before regional
court
magistrate, Mr Shikwambana. The state prosecutor was Mr Letsoalo.
There was no legal representative on behalf of accused
1. She
appeared in person. The following entry appears in the charge-sheet
diary:
'PP [Public Prosecutor]
infonns - it's a formal bail application in respect of accused 1. For
accused 2 and 3 [bail] formally denied.
For accused 1 - bail fixed at
R3000.
Conditions: 1.To appear
before Court at .................
2. Not to interfere with
witnesses.
Accused 2 and 3 in
custody, no bail (formerly denied).'
[25]
There is no indication that the investigating officer was present at
the proceedings of 10 August 2016, nor was he aware of
such
proceedings. The nature of bail proceedings in terms of s 60(11) of
the CPA requires that they should be formal and transcribed,
even
where the state does not oppose bail. I accept that accused 1's
personal circumstances might differ from those of the appellant
and
accused 3, which resulted in her being released on bail and the two
being refused bail. But given the state's case that she
is the
mastermind behind the murders, and that the appellant and accused 3
assisted her, it becomes difficulty to see how she was
released on
bail by the same court which denied the appellant and accused 3 bail,
hence a need for investigation of that aspect.
[26]
During the hearing of this appeal, I requested state counsel to seek
a transcribed record of those proceedings and place it
before me. I
did so because it brings to question judicial comity and consistency
with regard to bail applications, something the
Judge President
expressed concern about recently in a statement widely reported in
the media. As at the delivery of this judgment,
I had not received
the record or any written report on this aspect. As a result I shall
make an order directing that a written
report be furnished to the
Judge President.
[27]
In the result the following order is made:
1.
The
appeal is dismissed;
2.
The
Director of Public Prosecutions (Gauteng, Pretoria) is directed to
investigate the full circumstances under which accused 1
(Ms Bonolo
Lekalakala) was granted bail on 10 August 2016, and report in writing
to the Judge President of this Division on or
before 3 March 2017.
T
M MAKGOKA
Judge
of the High Court
Judgment
delivered
:
3 February 2017
Appearances
For
the Appellant
: Mr B.G. Mogaswa (Attorney)
Firm
:
Rihlampfu Attorneys, Pretoria
For
the Respondent
: Adv. R. Molokoane
Instructed
by:
Director of Public Prosecutions, Gauteng
[1]
S v Yanta
2000 (I) SACR 237 (Tk).
[2]
S
v Mabena [2007] 2 All SA 137 (SCA).
[3]
Para 4
[4]
S v Hartman; S v Jacobs 1968 (I) SA
278 (T) at 281; S v Mabaza en 'n ander
1994 (5) BCLR 42
(W) at 56
[5]
S
v Viljoen
2002 (2) SACR 550
(SCA) para 25.
[6]
S v Barber
1979 (4) SA 218
(D) at 220E-H
[7]
S v Porthem and others
2004 (2) SACR 242 (C).
[8]
S
v Botha en 'n ander
2002 (I) SACR 222 (SCA) para 19.