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[2017] ZAGPPHC 65
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Coetzee v S (A25/2017) [2017] ZAGPPHC 65 (27 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
A25/2017
Reportable: NO
Of interest to other judges: NO
Revised.
27/2/2017
In the matter between:
Abraham
Coetzee
Applicant
and
The
State
Respondent
JUDGMENT
OPPERMAN AJ
Introduction
[1]
This is an appeal against the
refusal of bail by the Regional Magistrate, Johannesburg, pending the
Appellant’s petition against
his conviction and sentence.
[2]
The Appellant was convicted on 16
May 2016 on two counts of theft by general deficiency as envisaged in
Section 100
of the
Criminal Procedure Act No. 51 of 1977
, as amended
(‘the CPA’) for a total value of R1 090 000
(counts 1 and 2) and one count of fraud in an amount
of R4.2 million
(Count 6).
[3]
On 15 November 2016, the trial court
sentenced the Appellant to 5 years’ imprisonment on each of the
theft counts and a further
15 years’ imprisonment on the fraud
count. The Court ordered that the sentences on Counts 1 and 2
run concurrently
with the sentence imposed in Count 6. In the
result, the Appellant has been sentenced to an effective term of 15
years’
imprisonment.
[4]
The three convictions are
underpinned by an allegation that the Appellant abused his position
of trust as an attorney in his dealings
with the monies of the
complainants.
[5]
On 15 November 2016, the Appellant
unsuccessfully applied for leave to appeal against his conviction and
sentence.
[6]
After protracted attempts to secure
a date for the hearing of his application for bail pending his
petition, which steps
inter alia
included the bringing of an urgent application to the High Court to
secure bail, his bail application was finally heard and refused
by
the trial court on Monday, 6 February 2017.
[7]
The Appellant now appeals against
the refusal of bail pending the outcome of his petition.
DOCUMENTS
TO WHICH THIS COURT MAY HAVE REGARD
[8]
The parties were in agreement that
the court should consider this appeal with reference to the following
documents:
8.1.
Transcribed record of the bail
application;
8.2.
The evidence relied upon for
purposes of the bail application consisting of an affidavit deposed
to by the appellant’s father
and the petition brought by the
appellant;
8.3.
The Notice of Appeal;
8.4.
The Charge sheet;
8.5.
The judgments in respect of
conviction, sentencing, leave to appeal and bail pending the
petition.
8.6.
Supplementary reasons received form
the learned magistrate on the day of the hearing.
GROUNDS
OF APPEAL
[9]
It is argued on behalf of the
Appellant that the learned Magistrate erred in refusing the
application for bail pending the Appellant’s
petition to this
Court. The gravamen of the Appellant’s appeal centres around
two issues in respect of which, so the Appellant
contends, the
Magistrate misdirected himself. These issues are:
9.1.
a disregard for the Appellant’s
constitutional right to a fair trial as a result of a failure to
allow the Appellant an opportunity
to gain access to certain relevant
office files seized and detained by the Law Society, which, he
contends, would have assisted
the Appellant in preparing for trial
and putting forward his defence to the charges, more particularly
Counts 1 and 2; and
9.2.
an infringement of the Appellant’s
rights to a fair trial as a result of the trial court’s
disregard for the rules of
evidence and principles relating to a fair
trial in that it placed reliance on inadmissible evidence and
disregarded evidence which
corroborated the Appellant’s version
of events.
[10]
The appeal also questions the
Magistrate’s decision in respect of the refusal of bail on the
basis that the Magistrate had
incorrectly applied the legal threshold
for the consideration of bail pending the outcome of a petition
against conviction and
sentence.
THE
MAGISTRATE’S JUDGMENT
[11]
In considering the application for
bail pending the petition, the learned Magistrate made three
pertinent findings that impacted
on his ruling in the matter:
11.1.
He found that the Appellant was no
flight risk.
11.2.
He found “…
that
the State proved its case beyond a reasonable doubt.”
11.3.
He found that no court of appeal
would interfere with the findings of the trial court to the extent
that the Appellant would not
have to serve a term of imprisonment.
THE
APPROPRIATE LEGAL THRESHOLD
[12]
At the heart of a decision on the
issue of bail pending appeal lies two relevant factors that are
interconnected, they are:
12.1.
the prospects of success on appeal;
and
12.2.
the likelihood of the applicant for
bail absconding.
[13]
It goes without saying that after
the conviction of an accused person, different considerations will
apply especially if the applicant
for bail has been convicted of a
serious offence and sentenced to a substantial period of
imprisonment.
S v Williams
,
1981 (1) SA 1170
(ZAD) at 1172 H
;
R v Milne and Erleigh
(4)
1950 (4) SA
601
(W);
R v Mthembu
1961 (3) SA 468
(D). Over time our Courts have started to adopt a
more lenient approach and moved away from the requirement that an
applicant for
bail pending an appeal or petition must show a
reasonable prospect of success on appeal before bail can be granted.
[14]
The test is, is the appeal
“
reasonably arguable and not
manifestly doomed to failure”
. If
there is no risk of an Appellant absconding if bail is to be granted,
a court should lean in favour of granting bail.
See
S
v Anderson
1991 (1) SACR 525
(C) at 527
B-G;
S v Hudson
1996 (1) SACR 431
(W) at 434 A-D;
Bailey
and Others v The State
[2013] ZAKZPHC
72 at paragraph 29.
[15]
This more lenient approach has been
confirmed in a number of cases reflecting different shades of the
approach than that embodied
in the conventional reasonable prospects
of success test. See
S v McCoulagh
2001 (1) SACR 542
(W) at 549-551 and
S v
Mabapa
2003 (2) SACR 579
(T) at
paragraph 5. The following dictum by Flemming DJP in
S
v Hudson (supra)
at 434 A- D provides a
useful guideline for the manner in which the prospects of success
should be considered. It is put
thus by Flemming DJP:
“
In
S v Anderson
1991 (1) SACR 525
(C) Marais J, with reference to a case
where there is no reason to be concerned about whether or not the
applicant will abscond,
did not support an enquiry whether there ‘is
a reasonable prospect of success’. He said that if the
appeal is
‘reasonably arguable and not manifestly doomed to
failure’, the lack of merit in the appeal should not be the
cause
of refusal of bail. I agree. I add that if the
conclusion that the appeal is manifestly doomed to failure can be
reached
only after what is tantamount to or approximates a full
rehearing, the appeal should ordinarily for purposes of considering
bail
be treated as an appeal which is arguable. The question is
not whether the appeal ‘will succeed’ but, on a lesser
standard, whether the appeal is free from predictable failure to
avoid imprisonment. Cf S v Moeti
1991 (1) SACR 462
(B) wherein
it was said that the applicant for bail must convince that there is a
‘a reasonable possibility,’ that
the appeal will avert
imprisonment.’
See
too
Bailey and Others v S
(supra) at para 29
[16]
The essential issue is whether the
interests of justice permit the release of the Applicant on bail even
after his conviction.
THE
MISDIRECTIONS BY THE MAGISTRATE IN HIS JUDGMENT
[17]
The learned Magistrate mentions
three arguments raised by the Appellant in support of his application
for bail pending appeal in
respect of conviction:
17.1.
The fact that certain files in the
possession of the Law Society could not be obtained which files would
have assisted the Appellant
in his defence (this impacts on the
conviction on counts 1 and 2);
17.2.
The fact of the R4.2 million cheque,
forming the subject matter of the conviction on Count 6 having been
issued to the Appellant
in his personal capacity; and
17.3.
The fact that the original cheque
that forms the subject matter of Count 6 could not be produced.
[18]
Despite the Magistrate having
identified and mentioned the aforesaid three topics forming the basis
for the contention that the
Appellant has an arguable case on appeal,
none of these arguments were considered and/or addressed by the
Magistrate in his refusal
of bail.
[19]
It is perhaps opportune at this
juncture to deal with another feature of this matter. The practice
directives of this Court require
of an Appellant to
inter
alia
place before the court of appeal,
the record of the proceedings in the bail application as well as the
supplementary reasons, if
any, by the learned Magistrate, in respect
of his refusal of bail. In an affidavit deposed to by the Appellant’s
attorney
of record (‘Mr Reid’), he explains how the
learned Magistrate initially, on 6 February 2017, indicated that he
was
not desirous to supply any further reasons to supplement his
judgment of 6 February 2017. It appears from the statement of Mr Reid
that the learned Magistrate subsequently, on 10 February 2017,
indicated that he wanted to supply further reasons but that he was
not in a position to do so until he had been provided with a full
transcript of the trial proceedings which, at the time of the
filing
of the appeal papers in this appeal, were not available. The learned
magistrate provided supplementary reasons on 27 February
2017 being
the date of the hearing of this matter. To the best of this court’s
knowledge this was done without the transcribed
record.
[20]
The learned Magistrate convicted and
sentenced the Appellant to a substantial period of imprisonment
without the need to be possessed
of a typed transcript of the court
proceedings. He thereafter entertained the Appellant’s
application for leave to
appeal and ruled on it. He also ruled
on the application for bail pending the petition. The
Magistrate provided reasons
for his refusal of bail pending the
petition in his judgment – also without the aid of a typed
record.
[21]
In delivering all of his aforesaid
judgments, the learned Magistrate must have clearly relied on his own
notes for purposes of coming
to a decision in respect of the
Appellant’s conviction, the appropriate sentence, the refusal
for leave to appeal as well
as the bail pending the petition
application.
[22]
It may well be that the learned
magistrate requires the transcribed record to deal with the arguments
raised in paragraph [17] hereof,
but if immediate answers to those
issues (and some others raised hereinafter) are not available from
the judgment on conviction,
the judgment on sentence and the judgment
on the application for leave to appeal (all of which were available
to the magistrate
to furnish supplementary reasons), is that not
indicative of the fact that the appeal is reasonably arguable and not
manifestly
doomed to failure? I would think so.
[23]
The learned magistrate in the
supplementary reasons highlights the following: ‘
Mr
van Staden was appointed as
curator
bonis
and he dealt with the
appellants practice. After taking over the files an inventory of all
the files was prepared and these files
were then stored in the
archives at the Law Society. The files the applicant demanded the Law
Society to produce were not part
of the files seized by the Law
Society’
. During argument the
court was referred to that portion of Mr Van Staden’s evidence,
which does not support this construction
of the facts. It appears as
though Mr Van Staden conceded that the Law Society had these files.
Mr Chauke objected to the court
being referred to portions of the
record without the state having a similar opportunity. In my view
there is merit to this objection.
However, if the court is handed a
portion of the record which is clearly in conflict with a factual
proposition advanced, I consider
it in the interests of justice to
receive that portion of the record and to have regard to the content
thereof under circumstances
where the liberty of the appellant is at
stake. It was not disputed that it was a correct transcription of Mr
Van Staden’s
evidence. The learned magistrate must be given
credit for being cautious and for calling for the transcribed record
of the proceedings
for purposes of providing supplementary reasons.
At first blush, it would appear that he might well have been mistaken
about the
import of Mr Van Staden’s evidence as the portion of
the record relied upon suggests that the Law Society did in fact have
the files.
[24]
The other issues not addressed by
the learned magistrate include:
24.1.
that he might incorrectly have
relied upon a copy of a letter dated 28 January 2006 which was handed
in as Exhibit “D”,
the authenticity of which was placed
in dispute;
24.2.
that he might have failed to
consider the contents of a letter handed in as Exhibit “F”,
corroborating the Appellant’s
version;
24.3.
that he might have failed to have
regard to Exhibit “G”, being a
Section 236
affidavit,
being an extract of the Appellant’s personal bank account at
Investec Bank and reflecting the deposit of the cheque
into the said
bank account and
24.4.
that he might have disregarded the
admissions made by the Appellant in respect of the said bank account,
being a personal account
and not a trust account, which admissions
had been accepted as Exhibit “H”.
[25]
It appears as though the learned
Magistrate erred in respect of his interpretation and application of
the relevant case law setting
out the legal threshold for
consideration in applications for bail pending a petition. The
following misdirections appear
from the judgment:
25.1.
Although the Magistrate correctly
referred to the decision
of State v
Hudson (supra)
in respect of the legal
threshold that applies when bail pending a petition is considered, he
did not apply this threshold in his
judgment.
25.2.
The following finding of the
Magistrate supports the aforegoing conclusion: “
When
the court looks at the facts in the current matter, the facts are
such that, the court is of the view that the State proved
its case
beyond reasonable doubt. The funds were channelled into the
Accused attorney’s trust account which funds were
dispersed by
the Accused for other reasons other than the reason they were taken
from. Relating to the fraud count, the conduct
of the Applicant
was that, he intended to defraud the complainant permanently of the
possession of the money.”
25.3.
The learned Magistrate erroneously
revisited his own judgment as if he was presiding over the matter as
a court of appeal. He essentially
confirmed the finding that the
Appellant’s guilt had been proven beyond reasonable doubt.
[26]
The learned Magistrate relied on the
decision of in
S v Smith
,
2012 (1) SACR 567
(SCA). This decision
deals with the test applicable when an application for leave to
appeal is considered and not with the test
to be applied when
applications for bail pending appeal are considered.
[27]
The learned Magistrate incorrectly
relied upon
S v Bruyntjies,
2003 (2) SACR 575
(SCA) at paragraph 5. This decision deals
with the applicable considerations where bail is considered in
respect of a schedule
6 offence, i.e. in instances where the Court is
to consider whether or not there are exceptional circumstances
present. The
present matter is not concerned with a Schedule 6
offence and hence the threshold set out in the
Bruyntjies
decision does not find application.
RELEVANT
CONSIDERATIONS
Is the Appellant a flight risk
[28]
The Magistrate found there to be no
risk of the Appellant absconding. I agree. The appellant is a 47 year
old South African citizen
who has been residing in South Africa since
his birth. He is married with three children aged 19, 16 and 11. The
eldest child is
studying education. The youngest children are
dependant on the appellant and his wife who is a homemaker. Until
date of his sentence
he was working at the service station owned by
his father and was a labour consultant from time to time. His father
is 70 years
old and has had 4 bypass operations. Because of this, the
appellant effectively ran the service station which employs 28
people.
The service station is indebted to the Bank in the sum of
approximately R1.5 million. The appellant owns no property abroad. He
does not possess a valid South African passport and has no previous
convictions.
[29]
The appellant appeared in the
regional court for the first time during July of 2009, attended court
every time until March 2010
when the charges were withdrawn against
him. He was advised to appear in court again during March 2011 when
bail was set at R10
000 and he was required to report three times per
week. The reporting requirements were later reduced.
[30]
He was convicted on 16 May 2016 and
remained on bail and appeared for his sentencing, which occurred on
15 November 2016.
[31]
There is thus very little risk of
the appellant absconding. The true consideration is therefore whether
or not the Appellant has
an arguable case on appeal.
The prospects of success on appeal
[32]
The Appellant submitted into
evidence, in support of his application for bail pending petition,
his petition to the Judge President
of this Court in support of leave
to appeal against his conviction and sentence.
[33]
The Appellant contends (in the trial
and again in the petition) that the monies of the complainant in
Count 1 (Mr Brown), were deposited
into trust and that such monies
were set off against a debt owed by Mr Brown in respect of legal
costs incurred. The Appellant
contends that this fact would
appear from the files kept by the Appellant when he was an attorney
but that he was not allowed access
to such files in his preparation
for, and during, his trial. He alleges that there is no evidence to
gainsay this version advanced
during his trial.
[34]
With regard to Count 2, the
Appellant explains how the complainant, Mr Sibisi, had received all
the monies he had deposited into
trust with interest. The appellant
says that Mr Sibisi had conceded in cross-examination that he had
indeed received his monies
with interest. This, the Appellant
contends, would also appear from the files kept by him in his
attorney’s practice,
to which he did not have access. He
alleges that there is no evidence to gainsay this version of the
Appellant. The Appellant points
out that the representative of the
Law Society, Mr van Staden, conceded that the Law Society was indeed
possessed of certain files
of the Appellant. The Appellant
contends that the fact of him having been deprived of access to these
files impacted severely
on his defence in the matter. If this
argument of the Appellant were to be sustained on appeal, it might
well be found that
his right to a fair trial would have been shown to
be infringed.
[35]
With regard to the fraud charge
(count 6), the Appellant explains that it was the State’s case
that the Appellant had received
monies from the complainant in Count
6, Ms Cook, in trust, that he had deposited these monies into his
trust account and that he
had expended these monies contrary to the
wishes of the depositor. The Appellant makes out an arguable case
that the Court may
well be found to have erred in finding that the
State has proven its case beyond reasonable doubt in circumstances
where the Magistrate
relied on documentary evidence that was not
properly proven (being secondary evidence by means of copies of
original documents
that were only provisionally allowed) and also by
disregarding relevant evidence that was not in dispute (being a
statement of
the Appellant’s bank account, a letter addressed
to the investor and accepted as Exhibit “F” as well as
the Appellant’s
Section 220 admission accepted as evidence as
Exhibit “H”).
[36]
I find that the appellant’s
appeal is reasonably arguable and not doomed to failure and, without
seeking to bind the judges
charged with deciding the petition, am of
the view that the appellant also passes the higher threshold. I find
that the appellant
has reasonable prospects of success in succeeding
in his petition, in other words, there exists sound rational grounds
for the
conclusion that there are prospects of success on appeal.
[37]
That being so, I conclude that the
appellant is entitled to be released on bail pending finalisation of
his petition and if leave
to appeal be granted, pending finalisation
of his appeal.
BAIL
CONDITIONS
[38]
The state requested that if the
court is inclined to grant bail, it is to attach the same conditions
than those which existed at
sentencing stage ie that the appellant
report to the Police Station in George once a week. I don’t see
any reason why this
requirement should not continue.
ORDER
[39]
I accordingly make the following
order:
The
Appellant is to be released on bail in an amount of R10 000 on
condition that:
1)
the Appellant hands himself over to the
appropriate prison authorities within a period of 7 days after his
attorney of record has
received notification of his dismissal of his
application in terms of
section 309C
(2) of the CPA against his
conviction and sentence, or, within a period of 7 days after having
abandoned such application, or,
should leave to appeal be granted,
within a period of 7 days after his attorney of record (or he
personally) has received notification
of his dismissal of his appeal,
or, within 7 days after having abandoned such appeal.
2)
The appellant reports every Wednesday,
commencing 1 March 2017, at the George Police Station, between 06h00
and 21h00.
__________________________________________
I
Opperman
Judge of the High Court
Gauteng Local Division, Johannesburg
Heard:
27 February 2017
Judgment
delivered: 27 February 2017
Appearances:
For
Appellant: Adv D Dörfling SC with Adv Lotz
Instructed
by: Marinus van Jaarsveld Attorneys
For
Respondent: Adv Chauke with Adv Bronkhorst
Instructed
by: Office of the DPP