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[2017] ZANCHC 69
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Shabalala v S (CA&R585/17) [2017] ZANCHC 69 (1 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY)
Case
number: CA&R
585/17
Date
heard:
21/11/2017
Date
delivered: 01/12/2017
In
the matter of:
SIPHO
SHABALALA
Appellant
and
THE
STATE
Respondent
Coram:
Snyders AJ
JUDGMENT
SNYDERS,
AJ
1.
On 23 May 2017, the appellant was refused bail by Magistrate F
Erasmus, a district Magistrate at the Kakamas District Magistrate's
Court. This appeal lies against that refusal. The appellant was
charged with assault with the intent to do grievous bodily harm
("assault GBH") (committed on 06 August 2017),
housebreaking with the intent to commit an offence unknown to the
State
(which took place on 07 August 2017), pointing of a firearm
(perpetrated on 07 August 2017) and intimidation (committed on 07
August
2017). The appellant was also charged with two counts rape and
assault GBH, committed on 29 November 2016. The offences are
categorised
a schedule 6 offence in terms of the Criminal
Procedure Act, 51 of 1977 ("the CPA").
2.
In his grounds of appeal it
was contended on behalf of the
appellant that
the Magistrate erred in the following respects:
2.1
He did not properly consider the conduct of the appellant during the
arrest;
2.2
He failed to consider the provisions of s 60(4)(b) of
the CPA;
2.3
He failed to give sufficient consideration to the
factors listed ins 60(11)
of the CPA;
2.4
In finding that there was a strong case against the appellant; and
2.5
By finding that the appellant had not shown exceptional
circumstances, which would release in the interests
of justice
justify his;
3.
The appellant testified during the bail proceedings in the
court
a qua.
All the charges preffered against him
relate to one complainant. He was in a love relationship with her
since 2013 and they resided
together intermittently. He denied the
charges against him and elected not to testify on the
merits of
the case. He is thirty six
years old with a fixed address situated at
Keimoes Barracks
and has resided there since 01 August 2017. He has
been employed by the South African Police Service for the past
thirteen years
and is presently on unpaid leave. The appellant
provides for his three minor children, aged four, eight
and eleven
years, respectively. The four year old son is the
appellant and complainant's son. The appellant also supports
his aged mother who resides in Johannesburg. The
appellant is unable to provide for his
dependants due to his absence from work.
4.
The appellant testified that he has no fixed or
moveable assets or a passport. He does not
have
any previous convictions, nor pending cases against
him. He has no health issues,
aside
from high blood pressure. When the investigating
officer informed him of the charges,
he says he handed
himself
over
and was informed that the complainant had filed a
withdrawal statement. The investigating officer initially
told
him that the docket would be sent in for
a decision but arrested him later that day.
Upon his arrest, the investigating officer allowed him to buy
cigarettes at a certain shop, while the
investigating
officer sat in the car
outside. When he returned to the vehicle after purchasing the
cigarettes,
he was taken to court.
5.
It also emerged during the appellant's testimony that the complainant
had previously withdrawn the two charges of
rape in
issue and consequently, the Director of Public Prosecutions ("DPP")
declined to prosecute. However, he
said he understood
that the DPP was at liberty to re-instate
same. The
appellant explained that, even
though the complainant is the mother of
his child,
he has a debit order on his bank account to
cater for the child's maintenance. He was of the view that none of
his police colleagues
would risk giving him a firearm
having regard to the charges against him.
6.
It further emerged under cross-examination that the appellant
aims to depart to Johannesburg once he gets paid. He gave
the
assurance that some of his colleagues know where he resides in
Johannesburg. The appellant also plans to apply for a work transfer
out of Keimoes.
7.
The investigating officer testified to the merits of the
charges. On 29 November 2016, the complainant had
a
party at her home, which the appellant
attended. She went to sleep after the party and woke up
when she felt
somebody on top of her. She discovered thatshe
w as only dressed
in her
brassiere. She noticed that
the appellant was having
intercourse with her without
her consent and tried to push him away. The
appellant overpowered
her and continued to have
intercourse with her. After the intercourse, the complainant
went to sleep on the
sleeper couch in the
house. The appellant again approached her and lay
between the complainant
and her son. He had
sexual intercourse with the appellant for the
second time
without her consent. After
the intercourse, the appellant went to the bathroom and the
complainant escaped and jumped
through the window . She ran
to the neighbour's house in only a towel and
seemingly reported
the rape to them. The SAPS
found her at the neighbour's house.
After the police collected her clothing, she went to
the police station to lay the charges.
8.
According to the investigating officer, after the first
sexual encounter, the appellant pushed the complainant
and
she fell. No DNA genetic samples were collected from her
and neither did she undergo any medical examinations.
On 30 November
2016, the complainant filed a withdrawal statement, which
reads as follows:
“
...
Ek het nadat ek die saak aangemeld het besef dat ek oorhaastig
opgetree het.
Ek en die beskuldigde is alreeds 7
Jaar saam en het 2 seuns van onderskeidelik 3 en
6
jaar
oud. Die Beskuldigde is ook die enigste broodwinner en dit is ook die
heel eerste keer dat hy my so aanrand en verkrag het.
Ek wil hom dus
nog 'n kans in die /ewe gee... “
9.
Concerning the charges relating to 06 and 07 August 2017, the
investigating officer testified that according to the complainant's
statement, the appellant threw a bottle at her on 06 August 2017. The
incident happened before the court building. The complainant
was
bleeding from her head where the bottle struck her. She, it appeared,
did not intend to lay a charge for this incident. When
she reported
the incident of 07 August 2017, she mentioned the assault of 06
August 2017. The State opened the docket for the incident
of 06
August 2017. There is no affidavit pertaining to this incident and
therefore the full factual matrix of that incident was
not provided.
10.
On 07 August 2017, the complainant was sleeping at
home when she woke up to a firearm in her face. The
apellant
was pointing the firearm at her while she was pleading with him and
crying. The appellant said that if he cannot have
her, nobody
would. He threatened to kill her and then
kill himself. She
managed to convince him not
to proceed with his actions. The appellant left the firearm at the
complainant's house and went
to a shop. After he had left, she
took the firearm and ran to the neighbour's
house.
The SAPS were summoned and the firearm was
confiscated.
11.
According to the investigating officer, on 07 August 2017, the
appellant booked out a service weapon at work. In terms of the
weapons register, this was the only occasion that the appellant had
booked out a service weapon. He had been issued with a personal
firearm, which he handed in permanently during 2013. The
investigating officer was of the opinion that the appellant
would
easily be able to access a firearm. He was further of the view
that strict bail conditions would not guarantee the safety of the
complainant.
12.
The complainant once again did not undergo medical examinations for
the 06 August 2017 assault. Photographs taken of her, however,
show
her injuries. The investigating officer was not convinced that the
complainant would give her co-operation in the trial because
on
09
August 2017, the complainant filed a withdrawal statement for these
incidents and stated the following:
"...
So
I have decided to withdraw the case because he
apologised to me and promised not to came (sic) to me or
disturb me. That I am going to apply for a protection order against
him."
13.
What is of interest is the information the investigating officer
disclosed regarding the appellant's address at the Keimoes
Barracks.
He said that the appellant was handed the keys to room numbers 18 and
28 when he lodged his residential application on
02 August 2017; his
application for accomodation was unsuccessful; and
although he had the keys,
he never resided there.
14.
The Magistrate found that there were a number of 'red
flags' raised in the State case, especially the version
of
the complainant in refusing to undergo medical
testing and withdrawing the
charges. He
was of the view that the complainant's level
of intoxication during the November
2016 incidents, may also
play a role in weakening the State case. However,
the fact that the
complainant fled the house nearly
naked to the neighbour's house, clearly shows that something
must have happened.
15.
The Magistrate reiterated that the recent charges of August
2017, had caused the rape charges to be re-instituted,
bringing
the bail application within the purview of Schedule 6 of
the CPA. He held that the
appellant had to show
that exceptional circumstances exist which in the interests of
justice permit his release on bail. He had
regard to the appellant's
personal circumstances and the strength of the State case.
16.
What was strange, the Magistrate said, was that the appellant booked
out a service pistol; entered the complainant's home; threatened
her
with the firearm; and relented and left the firearm to go to
the shop. Judging the case on probabilities,
the Magistrate found that, though untested, the complainant 's
version had a ring of truth to it. He further found that the
appellant
could easily access a firearm and that stringent bail
conditions will not alleviate the threat. He reasoned that no
exceptional
circumstances existed which in the interests of justice
would permit his release on bail.
17.
Section 60(1l)(a) of the CPA stipulates :
'(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 a 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...
'
18.
Section 65( 4) of the CPA provides that:
"The
court or judge hearing the appeal 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
opinion the lower
court should have given."
19.
This court may interfere with the Magistrate's
decision if it is satisfied that the decision
was
plainly wrong. The appellant carries the
burden to show that exceptional circumstances
exist.
20.
In
S
v Viljoen
[1]
,
the
SCA relied on the dicta in
S
v Jonas
[2]
and held as follows:
'The
term "exceptional circumstances" is not defined. There can
be as many circumstances
which
are exceptional as the
term in essence
implies. An urgent
serious medical operation necessitating the accused's absence
is one that springs to
mind.
A
terminal illness may be another. It would be futile to attempt
to provide a list of possibilities which will constitute such
exceptional
circumstances. To my mind, to incarcerate an innocent
person for an offence which he did not commit could
also
be viewed as an exceptional circumstance. Where a man is
charged with a commission of a Schedule
6
offence when
everything points to the fact that he could not have committed the
offence because, eg he has a cast-iron alibi, this
would likewise
constitute an exceptional
circumstance.'
21.
Mr Jankowitz, for the appellant , argued that the Sate case is
weak and that this constitutes substantial and compelling
circumstances. Even though the complainant withdrew the charges,
there are sufficient independant factors
to
substantiate the allegations she made. She
reported the rape to the neighbours
in a near
naked stat e. There are photographs depicting the assault GBH. It was
common cause that the appellant handed in
his personal firearm in
2013 and the State would be able to prove that he booked out the
firearm on 07 August 2017. The State could
show that the complainant
ran out of the house with the firearm and handed it to the police.
This demonstrated that something amiss
must have happened.
22.
The
withdrawal statements of the charges did not entail that the
complainant laid false charges against the appellant, but instead
set
out a number of other reasons for the withdrawal. The test is to
determine
prima
facie
the
relative strength of the State case
and not make a provisional finding of innocence
or guilt.
[3]
That
being said, the appellant has not discharged the
onus
of
showing exceptional circumstances which in the
interest of justice permits
his release.
23.
I am also of the view that, regard has to be had to the factors
listed ins 60 (4) of the CPA, the relevant part
of which
reads:
'(4)
The interests of Justice do not permit the release from
detention of an accused where one or more of the
following
grounds are established:
(a)
Where there is the likelihood that the accused, if he or
she
were released on bail, will endanger the safety of the public or
any particular person or will commit a Schedule 1 offence; or
(b)
where there is the likelihood that the accused, if he or she
were
released on bail, will attempt to evade his or her trial;
or
(c)
where there is the
likelihood
that
the accuse
d
,
if
he or
she
were released on bail, will attempt to influence
or intimidate witnesse
s or to conceal
or
destroy evidence; or
(d)
where
there
is
the
likelihood
that
the accuse
d
,
if
he or
she
were released on bail,
will undermine or jeopardise the objectives or the proper functioning
of the criminal justice system
,
including the bail
system;
(e)
where in exceptional circumstances there is the
likelihood that the release of the accused will disturb the
public
order or undermine the public peace or security'
24.
The Magistrate found that the appellant will not evade his trial if
released on bail. I do not agree. The
appellant
expressed his wish to obtain a transfer from his
work and move to Johannesburg.
He did not
furnish his Johannesburg address. He also does not have a fixed
address at the Keimoes Barracks. To my
mind,
this plays a role in determining whether there is a
likelihood, on a balance of probabilities, that
the
appellant will evade his trial. The
appellant was clearly dishonest when he testified
about
residing at the Barracks.
25.
The Magistrate was concerned with the appellant's access to a firearm
and the fact that he entered the complainant's home when
uninvited
and was not involved in any romantic relationship with her. The
appellant had already faced two rape charges at
that time, which were
withdrawn at the behest of the complainant. Under those
circumstances, the Magistrate's reasoning
regarding the complainant's
safety, cannot be faulted. He stated as follows in the judgment :
"If
you did point the firearm at the complainant, something
happened to change your mind. The question is what will happen
if
there is a next time? The question is, is can I say that there won't
be a next time?
26.
The
following was said in S
v
Mohamed
[4]
:
"To
sum up: the appeal by an aggrieved accused under
sec.
97
of the Code to a Superior Court against a decision
of a magistrate
in respect of his application to be
released on bail, is an appeal in the wide sense, that is, it is a
complete re-hearing and re-adjudication
by the Superior Court of the
merits of the application, with or without additional
information, in which it can, in
the exercise of
its
own discretion, make such order as to it seems just; an appeal
against its decision lies to this Court under sees. 21 (1), (2),
and(3) of the Supreme Court Act, but only with the leave of the Court
a quo, and, if it is refused, with the leave of this
Court; on
such an appeal this Court will only interfere if the Court a quo
committed such an irregularity or misdirection
or exercised its
discretion so unreasonably or improperly as to vitiate its decision."
27.
The appellant's personal circumstances and the strength of the
State's case do not consititute the existence of exceptionaI
circumstances. The likelihood that the accused may evade his trial
and interfere with the State witnesses, do not, in the interests
of
justice, warrant his release on bail. I am not swayed that the
Magistrate excercised his discretion incorrectly. It follows
that the
appeal must fail.
28.
I therefore make the following order:
1.
THE APPEAL IS
DISMISSED.
_________________
J.A
SNYDERS
ACTING
JUDGE
On
behalf of Appellant:
Adv D Jankowitz (oio Fletcher's Attorneys)
On
behalf of
Respondent:
Ad v K Ilanga (DPP)
[1]
2002
(2)
SACR
550
(SCA) at para 12
[2]
1998
(2)
SASV
677 (SOK)
[3]
See S v Botha & Another
2002 (2) SA 680
(SCA) at para 25
[4]
1977 (2) SA 531
(
A)
at 542A-B