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[2017] ZANCHC 9
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Nwabunwanne v S (CA&R114/2016) [2017] ZANCHC 9; 2017 (2) SACR 124 (NCK) (31 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
CA
& R 114/2016
Datum
verhoor/Date heard:
24
/ 01 /2017
Datum
gelewer/Date delivered:
31
/ 01 /2017
In
the matter between:
ALEX
NWABUNWANNE
Appellant
and
THE
STATE
Respondent
Coram:
Erasmus,
AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
INTRODUCTION
[1]
The appellant lodged an appeal to this Court against the refusal by
the Magistrate Kimberley to release him on bail. The
appellant
is accused number 2 in a pending criminal matter in which he and the
another accused, face two charges of contravening
the provisions of
section 5(b) of the Drugs and Drug Trafficking Act, No. 140 of 1992
(‘the Act’), to wit dealing in
an undesirable dependence
producing substance as listed in Part III of Schedule 2 of the Act.
It was alleged that on 13 August
2015 the appellant and his
co-accused dealt in cocaine and methamphetamine and on 18 August 2015
dealt in cocaine. Although
the weights of the substances
are specified in the charge sheet, there was no reference to the
alleged value thereof.
[2]
The appellant was arrested on 10 June 2016. The initial bail
application commenced on 30 June 2016 and was concluded on
29 July
2016.
[3]
Adv. Nel, on behalf of the appellant and Adv. Ilanga, on behalf of
the respondent, are in agreement that the evidence and facts
that had
been placed before the Court
a
quo
in
the initial bail application and the subsequent application based on
new facts should be considered together for purposes of
adjudication
of this appeal. This approach appears to be in accordance with
the law.
[1]
THE INITIAL BAIL
APPLICATION
[4]
At the onset of the initial bail application on 30 June 2016, the
prosecutor placed on record that it was a Schedule 5 bail
application. With this he implied that it was an application as
envisaged in section 60(11)(b) of the Criminal Procedure
Act, No. 51
of 1977 (‘the CPA’). The attorney, representing the
appellant, did not respond to the submission of the
prosecutor and
the learned Magistrate subsequently informed the appellant and his
co-accused that “
this
will be a Schedule 5 bail application which means it must be shown to
be in the interest of justice that you get bail.
The State will
get an opportunity to present evidence why they says (
sic)
bail
should be refused. You will get an opportunity through your
attorney to show why you say it is in the interest of justice
that
you get bail.”
[5]
The
confusion pertaining to the legislative framework within which the
bail application was adjudicated manifested itself during
argument
and in the judgment of the learned Magistrate.
[6]
From the record it appears as if the parties, as well as the
Magistrate, initially accepted that the bail application fell within
the ambit of s 60(11)(b) of the CPA. On the other hand it
appears as if the respondent accepted the
onus
and
commenced proceedings by leading the evidence of the investigating
officer, whereafter affidavits by the appellant and his co-accused
and other confirmatory affidavits were presented in support of their
bail applications.
[7]
The prosecutor presented his argument first, without any reference to
the applicable section, schedule or the onus. Only
during
argument by the legal representative of the appellant did he submit
that “
it
is going to be a Schedule 1 and in that instance, the State will bear
the onus of establishing on a balance of probabilities
that the
interest of justice would not permit the release of the Accused”.
The
prosecutor was not afforded the opportunity to reply.
[8]
In her judgment, with reference to the applicable schedule, the
learned Magistrate remarked “
I
am going to deal with this bail application as if it is just a plain
and normal bail application where I consider all the facts.
The
reason being that my decision at the end of the day will be based on
what I tell you I have taken into account.”
[9]
After analysis, without reference to the incidence of the onus, the
learned Magistrate found “
neither of you are suitable
candidates for release on bail”.
She found that
“
there appears to be a very strong case
” against
the appellant and his co-accused. She was satisfied that there
was a propensity by the appellant and his co-accused
to become
involved in offences of this nature and given the seriousness of the
offences, long term imprisonment was likely to be
imposed. She
stated that she “
personally believed
” the
appellant to be a flight risk and concluded that neither of them were
suitable candidates for release on bail.
[10]
The procedure to be followed in bail applications which fall under
Schedule 5 entails that an accused is burdened with an onus
and will
commence adducing evidence which has to satisfy the court, on a
balance of probabilities, that the interests of justice
permit his
release.
[11]
In bail applications, other than those envisaged in section 60(11) of
the CPA, the onus is on the prosecution to show that
the interest of
justice do not permit the release of an accused on bail. The
interests of justice will not permit the release
on bail where the
prosecution establishes the likelihood of one or more of the grounds
listed in section 60(4) of the CPA occurring.
[2]
Even if the prosecution establishes this, it is subject further to
the provisions of section 60(9) and the due consideration
of an
accused’s constitutional rights.
Edeling
J in
Prokureur-Generaal,
Vrystaat v Ramokhosi
[3]
stated
the position to be the following:
'Selfs
waar bevind word dat een of meer van die voorgeskrewe gronde of enige
ander soortgelyke grond wat aanhouding in belang van
geregtigheid
regverdig, as 'n waarskynlikheid bestaan, dan is dit slegs 'n
voorlopige grond of gronde ter regverdiging van weiering
van die
borgaansoek. Subartikel 60(9) skryf in soveel woorde voor dat die
"aangeleentheid" dws die vraag of dit finaal
bevind kan
word dat dit in belang van geregtigheid is dat borgtog nie toegestaan
word nie, beslis moet word "deur die belang
van geregtigheid op
te weeg teen die beskuldigde se reg op sy of haar persoonlike
vryheid. . .".
[12]
Edeling J
[4]
concluded
that section 60(11) of the CPA “
only
operates in respect of an accused charged with a definite,
circumscribed and understandable offence”.
Before
an accused is thus burdened with the onus envisaged in section 60(11)
of the CPA, the jurisdictional fact that the intended
offence is one
listed in Schedule 5 or 6, has to be established. This is done
by either a certificate from the Director of
Public Prosecutions
issued in terms of section 60(11A) of the CPA or by means of full
description of the charge in the charge-sheet.
Section 60(11A)
was enacted to make it easier for the prosecution to establish the
objective jurisdictional fact which must
exist before section
60(11)(a) or (b) can come into operation as such certificate
constitutes
prima
facie
proof
of the charge to be brought against the appellant.
[5]
[13]
In this instance there is no reference in the charge sheet to the
value of the dependence-producing substance and it can thus
not be
ascertained whether the offences fall within the ambit of Schedule
5. The prosecutor also did not hand in a written
confirmation
in terms section 60(11A) of the CPA, that the Director of Public
Prosecutions intended to charge the appellant with
a Schedule 5
offence.
[14]
Mr. Nel submitted that the bail application should not have been
approached on the basis of the provisions of section 60(11)(b)
of the
CPA and that the State had to show that the interests of justice did
not permit the release of the appellant on bail. Ms.
Ilanga submitted
in her Heads that the offences fell within the ambit of Schedule 5.
[15]
In
S
v Josephs
[6]
Binns-Ward
AJ suggested that, g
iven
the drastic consequences for an accused if section 60(11) of the CPA
applies, it is
desirable
that the procedural provisions of s 60(11A) of the CPA should be
closely adhered to and that proof of the nature of the
charges should
occur with some formality, either at the commencement of proceedings
or as soon thereafter as possible. I
fully agree. This
appeal illustrates the importance of proof of the nature of the
charges. In this instance it was
not done, which resulted in
the confusion and uncertainty pertaining to the applicable section.
[16]
Ms.
Ilanga correctly submitted that the Court
a
quo
did
not have reliable or sufficient information before her to reach a
decision on the bail application
and
should have ordered that information or evidence pertaining to the
nature of the offences be placed before her. That is
exactly
what section 60(3) of the CPA envisages.
[17]
I am satisfied that the learned Magistrate had misdirected herself in
respect of the procedure to be followed in the initial
bail
application.
[18]
In
terms of section 65(4) of the CPA, I shall not set aside the decision
of the Court
a
quo
,
unless I am satisfied that the decision was wrong and then give the
decision which, in my opinion, the lower court should have
given.
This does not necessarily mean that I should merely order that
appellant should or should not be released on bail,
but will depend
on the circumstances of each case.
[7]
[19]
This matter before me is not one where I, on the facts before me,
should order whether or not the appellant should be released.
It cannot merely be accepted that the appellant or the respondent
would have approached the bail application on the same basis,
had
there been clarity whether section 60(11)(b) of the CPA applied or
not. On this basis alone the appeal should succeed
and the
matter remitted to the Court
a
quo.
NEW FACTS
[20]
On 21 December 2016 the appellant approached the court
a quo
with
a further bail application, based on new facts. The learned
Magistrate indicated that the procedure to be followed was
a
two-legged enquiry; firstly to establish whether the facts were new
facts and then, if found to be new facts, for her to hear
what the
evidence is. She required counsel for the appellant to address
her on what the alleged new facts were and, indicated
that if these
facts were found to constitute new facts, the appellant would be
allowed to present evidence.
[21]
Counsel for the appellant raised several points during his address on
the new facts in the Court
a
quo
.
I do not deem it necessary to deal with all of these for purposes of
the appeal. Most importantly, it was averred
that the evidence
of the investigating officer in the initial bail application,
pertaining to video footage, appeared to be false
and that he had
misled the Court. It was placed on record that, on perusal of
the case docket that had been presented to
the attorney of the
appellant, it appeared there were neither video nor audio footage
that linked the appellant to any of the two
offences that he had been
charged with. The person in the relevant video footage was not
the appellant. The other photos
relied upon merely showed him
entering a salon and do not link him to any transaction. It was
submitted that the only evidence
against the appellant was thus
circumstantial in nature.
[22]
In response to the submissions above, the prosecutor submitted that
the investigating officer had testified about video footage,
photos
and the evidence of the agent. The averments, made on behalf of
the appellant, pertaining to the video footage and
photos were not
disputed.
[23]
In her further judgment the learned Magistrate did not deal with the
issues pertaining to the video footage and photos.
She found
that the strength of the State’s case would only become clear
at the end of a trial within a trial (in respect
of the
section 252A
of the
Criminal Procedure Act, No. 51 of 1977
) in the criminal trial.
She further indicated that ‘
presently
much of the evidence still needs to be tested for its credibility or
non credibility
’.
She found that the appellant had not convinced her of new facts,
thereby denying the appellant the opportunity to
adduce evidence.
[24]
New
facts can and should be put before a magistrate by adducing oral
evidence or submitting a document stating facts which are common
cause.
[8]
The
purpose of adducing new facts is not to address problems encountered
in the previous application but should be facts discovered
after the
bail application
.
[9]
The
facts relied on by the appellant in this instance were discovered
after the initial application.
[25]
An accused should not lightly be denied the opportunity to present
such facts by means of adducing evidence. The submissions
by the
appellant’s counsel at least,
prima
facie
,
indicated that the evidence presented on behalf of the respondent
during the initial bail application, may be compromised and
that the
State’s case might not be as strong as the learned Magistrate
assumed it to be. The respondent did not
dispute what had
been conveyed on behalf of the appellant in respect of the photos,
the video and the audio footage.
[26]
The strength or weakness of the State case is relevant in determining
where the interests of justice lie in the context of
section
60(11)(a)
or (b) of the CPA.
[10]
It would also be relevant in a bail application other than one in
terms of
section 60(11)(a)
or (b), where the prosecution is required
to show that the interest of justice does no permit the release on
bail.
[27]
The learned Magistrate was wrong in ruling that the appellant had not
established new facts, without having provided him the
opportunity to
adduce evidence in respect of the alleged new facts. I am
satisfied thus that I am entitled to interfere with
her decision.
[28]
Given the misdirection in respect of the applicable section of the
CPA that governed the initial bail application and that
pertaining to
the new facts in the further bail application, this matter should be
referred back to the Court
a
quo.
It is not a matter where I can and should substitute the
finding of the learned Magistrate with my own. Legally there
appears to be no objection to an order that the bail application be
remitted to the court
a
quo
.
[11]
WHEREFORE I MAKE THE FOLLOWING
ORDER:
1.
THE
DECISIONS OF THE MAGISTRATE, KIMBERLEY, IN THE BAIL APPLICATION UNDER
CASE NUMBER B336/2016 ARE SET ASIDE.
2.
THE
BAIL APPLICATION IS REMITTED TO THE MAGISTRATE, TO MAKE A RULING AS
TO WHETHER THE BAIL APPLICATION IS TO BE ADJUDICATED IN
TERMS OF THE
PROVISIONS OF
SECTION 60(11)(b)
OF THE
CRIMINAL PROCEDURE ACT, NO. 51
OF 1977
.
3.
THE
APPELLANT IS TO BE AFFORDED THE OPPORTUNITY TO ADDUCE EVIDENCE IN
SUPPORT OF HIS FURTHER BAIL APPLICATION OF 21 DECEMBER 2016
IN
RESPECT OF THE ALLEGED NEW FACTS THAT HAD COME TO LIGHT AND/OR ANY
NEW FACTS THAT HAD SUBSEQUENTLY COME TO LIGHT.
4.
THE
RESPONDENT IS TO BE AFFORDED THE OPPORTUNITY TO ADDUCE FURTHER
EVIDENCE IN RESPONSE TO ANY FURTHER EVIDENCE PRESENTED BY THE
APPELLANT.
5.
THE
APPELLANT SHALL REMAIN IN CUSTODY PENDING THE FINALIZATION OF THE
BAIL APPLICATION BY THE MAGISTRATE, KIMBERLEY.
_________________
SL ERASMUS
ACTING
JUDGE
For
the Applicants:
Adv.
I.J. Nel (oio Legal Aid Board)
For
the Respondent:
Adv.
K.F. Ilanga (oio NDPP)
[1]
S v Vermaas
1996(1)
SASV 528 (T) at 531e-f;
S v Mohammed
1999(2) SASV 507 (K) at 511
[2]
S v Tshabalala
1998
(2) SACR 259
(C)
at
269
e
–
f
[3]
1997
(1) SACR 127
(O)
155
d–h
[4]
1997
(1) SACR 127
(O)
at
156e
[5]
Gade v S
[2007]
3 All SA 43
(NC) at para [5];
Section
60(11A)(c)
[6]
2001
(1) SACR 659
(C)
at
661
f
–
h
[7]
S v Green and
Another
[2006] ZASCA 3
;
2006
(1) SACR 603
(SCA) par [23] and [25]
[8]
S v De Villiers
1996
(2) SACR 122
(T)
; See
also
S v Ho
1979
(3) SA 734
(W)
at 737G
[9]
Davis & another v
S
(unreported,
KZDLD case no 2888/2015, 8 May 2015) at [3] and also
S
v Petersen
2008
(2) SACR 355
(C)
at [57]
[10]
S v Kock
2003(2)
SACR 5 (SCA) at 11i-12a;
S v DV &
others
2012 SACR 492
(GNP) at [16] and
[31]
[11]
S v Kock
2003 (2) SACR 5
(SCA) par [25]