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[2017] ZAKZPHC 27
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Khanyile and Others v S (1721/2017P) [2017] ZAKZPHC 27 (9 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No. 1721/2017P
In
the matter between:
Joseph
Zamokwakhe
Khanyile First
Appellant
Mandla
Border
Khumalo Second
Appellant
Doris
Jabulile
Dladla/Zaca Third
Appellant
and
The
State Respondent
Judgment
Lopes
J:
[1]
The three appellants, together with two others were arrested by
members of the South African Police and are to be arraigned
in the
High Court in Pietermaritzburg on three counts of premeditated
murder, one count of attempted murder, one or more counts
of fraud
and the theft of motor vehicles. The trial date has been set down for
May and June 2017.
[2]
On the 3
rd
November 2016 and upon various dates thereafter, the appellants,
together with their co-accused, appeared in the Regional Court
at
Greytown before Mr C F Masikane and applied for bail pending their
trial in the High Court.
[3]
On the 14
th
December 2016 the learned magistrate handed down judgment in the
application, refusing the grant of bail to any of the five accused.
This matter comes before me by way of an appeal by Messrs Khanyile,
Khumalo and Dladla/Zaca in terms of s 65(1)(a) of the Criminal
Procedure Act (‘the Act’) against that decision to refuse
them bail.
[4]
Sub-s 60(3) of the Act provides for the circumstances where the
interests of justice do not permit the release from detention
of an
accused. Sub-s 60(9) sets out the factors which a court must take
into consideration in weighing the interests of justice
against the
right of the accused to his or her personal freedom, and the
prejudice he or she is likely to suffer if he or she were
to continue
to be detained in custody.
[5]
In this matter the state’s case may be summarised as follows:
(a)
The facts
are more easily understood if the accused are viewed in two groups,
accused 1 and 2 (the first and second appellants before
me) who would
carry out murders, and accused 3, 4 and 5 (accused 4 is the third
appellant before me) who would carry out what may
be referred to as
the administrative functions of the conspiracy by finding persons
whose lives they would insure with one or more
insurance companies.
They would then give instructions for the murders to be carried out.
(b)
They would
nominate themselves as beneficiaries of those insurance policies or
persons over whom they had control or pursuant to
which they could
gain access to any funds paid out. Accused 3, 4 and 5 would then give
instructions to accused 1 and 2 to murder
the persons insured. This
would (in three counts) involve drugging or incapacitating them, and
then running them over with a motor
vehicle.
(c)
The murders
were allegedly carried out on the 27
th
August 2015, the 20
th
November 2015 and the 19
th
March 2016.
(d)
Two of the
murder charges allege that the victims in them were deliberately run
over by a motor vehicle, and in the other murder
charge the victim
was shot.
(e)
There is
also a charge of attempted murder, allegedly committed on the 20
th
November 2015. The State alleges that after unsuccessfully trying to
kill the deceased by running her over, the accused conspired
to have
the victim killed by way of a lethal injection whilst she lay injured
in hospital.
[6]
By virtue of the allegations that the murders were premeditated and
that the accused all conspired in the execution of a common
purpose
or conspiracy to commit the crimes, the bail application fell to be
dealt with in terms of the provisions of sub-s 60(11)(a)
of the Act.
[7]
Sub-s 60(11) provides:
‘
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; …’
[8]
Before dealing with the merits of the appeal, it is pertinent to
point out that sub-s 65(4) provides:
‘
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.’
[9]
Each of the appellants, as well as their co-accused testified at the
bail hearing. Detective Warrant Officer Nelson Naicker
gave evidence
for the State by way of an affidavit in which he set out the
investigations into the three counts of murder, the
count of
attempted murder and the methods used in executing the crimes of the
accused. No application was thereafter made by counsel
for the
appellants to re-open the cases of the accused in order to deal with
the allegations made in that affidavit.
[10]
With regard to the concept of ‘exceptional circumstances’
as contemplated in sub-s 60(11)(a) and the requirements
of sub-s
65(4), I refer
to
S v Mathebula
2010
(1) SACR 55
(SCA) at paragraph 12 where Heher J stated:
‘
But a State case supposed in
advance to be frail may nevertheless sustain proof beyond a
reasonable doubt when put to the test.
In order successfully to
challenge the merits of such a case in bail proceedings an applicant
needs to go further: he must prove
on a balance of probability that
he will be acquitted of the charge … That is no mean task, the
more especially as an innocent
person cannot be expected to have
insight into matters in which he was involved only on the periphery
or perhaps not at all. But
the State is not obliged to show its hand
in advance, at least not before the time when the contents of the
docket must be made
available to the defence; … Nor is an
attack on the prosecution case at all necessary to discharge the
onus; the applicant
who chooses to follow that route must make his
own way and not expect to have it cleared before him.’
It
was made clear in
Mathebula
that an accused is required to show ‘exceptional
circumstances’, meaning facts which are unusual or facts which
singularly
or altogether warrant release of the appellant in the
interests of justice. See also
S
v Faye
2009
(2) SACR 210
(Tkhc) and
S
v Mazibuko & Another
2010
(1) SACR 433
(KZP).
[11]
The attack of the appellants upon the judgment on the learned
magistrate may be summarised as follows:
(a) The learned
magistrate misdirected himself in finding that the personal
circumstances of the appellants failed to persuade him
that
exceptional circumstances existed, and if they did, that they are not
such that the interests of justice permit any of the
appellants to be
released on bail; and
(b) The learned
magistrate failed to take sufficient account of the fact that the
appellants voluntarily handed themselves over
to the police;
(c) The learned
magistrate erred in finding that the appellants are likely to
endanger the safety of the republic.
(d) The learned
magistrate erred in finding that, given the sentences that the
appellants are facing, they are unlikely to stand
trial.
(e) The learned
magistrate erred in finding that the medical conditions of the three
appellants could be dealt with in prison.
(f) The learned
magistrate erred in holding it against the appellants that they
failed to answer questions put to them which may
have been
incriminating. This is exacerbated by the fact that the learned
magistrate suggested to the appellants that they could
decline to
answer questions, and did not warn them that their failure to do so
may count against them.
(g) The learned
magistrate failed to take into account the factors in sub-s 60(9) of
the Act which are in favour of the appellants.
(h) The learned
magistrate erred in failing to find that the appellants had
established on the probabilities that they will secure
an acquittal
in the main trial.
[12]
I shall deal firstly with the evidence of the three appellants. The
first appellant Zamakwakhe Joseph Khanyile, who was accused
1,
testified that:
(a) He was 37 years of
age and lived at Matimatolo in his house where he had lived for 18
years.
(b) He is not married but
lived with his partner.
(c) He has six children
and provides for their education.
(d) He provides for all
six of his children who live with three different mothers, two of
whom are unemployed.
(e) Also residing with
him are his mother and sister who suffer from epilepsy and diabetes
respectively.
(f) He is employed at MTE
at Hermannsburg and has worked for the company for five years, and
currently earns R5 300 per month.
(g) He currently suffers
from what he referred to a as ‘traditional’ sexually
transmitted disease.
(h) He has been a pastor
in the Serenity Church of the Zion Church for seven years’.
[13]
Mr Khanyile confirmed he had been arrested at his place of
employment. He then explained that he had gone to the hostel where
he
was staying and was called by a security officer who told him that
the police were looking for him and were at the gate. He
claimed that
he went to the gate and surrendered himself to the police officers.
Mr Khanyile also testified that he owned a taxi
from which he derived
an income of about R4 000 per month. He was not receiving any
income whilst in custody. Being in custody
also affected the
operation of his taxi business.
[14]
In cross-examination Mr Khanyile was accused of deliberately
misleading the police when they questioned him concerning his
whereabouts on the day on which the deceased in count 3 died. Mr
Khanyile refused to deal with this matter, saying that he would
do so
at his trial.
[15]
Mr Khanyile was accused of misleading the court because he denied
that his rights had been read to him. He admitted that he
had signed
a document referred to as an SAP14A which is a Notice of Rights in
terms of the Constitution, and the prosecutor put
it to Mr Khanyile
that his rights were explained to him by the police.
[16]
The prosecutor also put to Mr Khanyile that not only had he lied to
the police as to his whereabouts on the day Mr Mdlalose
(the deceased
in count 3) died, but that there was video footage which showed him
with the deceased in count 3 on the night when
he was killed. Mr
Khanyile refused to deal with these aspects as well.
[17]
In cross-examination Mr Khanyile stated that he knew the second
accused, Mr Khumalo and the third accused, Ms Mildred Fisani
Khoza.
He denied knowing the accused persons numbered 4 and 5, Ms
Dladla/Zaca and Ms Zuma. Mr Khanyile confirmed his cellphone
number
and it was put to him that the state was in a position to prove that
many calls had been made from that cellphone to accused
2, 3 and 4,
and in the case of accused 4, 289 times. His handset was also used to
communicate with the handset of accused 5 165
times. Mr Khanyile
declined to deal with any of this evidence.
[18]
Having previously told the court that he had no previous convictions,
it was put to Mr Khanyile by the state that he in fact
had a previous
conviction. He eventually admitted having a previous conviction for
theft, and his explanation for changing his
evidence was that he
thought that his counsel was referring only to convictions for which
he had been sentenced to imprisonment.
Mr Khanyile confirmed that he
was in possession of a red Toyota motor vehicle at the time he was
arrested, but he alleged that
that vehicle belonged to a person in
Pietermaritzburg who was in the process of selling the car to him. It
was also suggested to
Mr Khanyile in cross-examination that a witness
to the murder of Mr Mdlalose was threatened. Mr Khanyile maintained
that he knew
nothing about that because he was in prison. Mr Khanyile
also claimed to have no knowledge of the fact that there were between
15 and 20 peoples’ lives that were insured by accused 3, 4 and
5.
[19]
Mandla Dhoda Khumalo, who was accused 2, testified next and his
evidence may be summarised as follows:
(a) He is 38 years old
and engaged to one Nonhlanhla Zondi.
(b) He lived at
Ematimatolo in a homestead with his mother, two siblings and two
children as well as his sister’s child. He
has lived there for
approximately nine years, and supports everyone in that homestead. He
has three children aged from 13 years
to five years. They all attend
school and Mr Khumalo pays for their school fees.
(c) Mr Khumalo has a
pending appeal against a decision of the Regional Court convicting
him of armed robbery committed on the 30
th
July 2009 and
for which he was sentenced to 12 years imprisonment. He was released
on bail of R5 000 pending the outcome of
that appeal. Mr Khumalo
also had previous convictions for escaping from lawful custody and
threatening a police officer with death
or bodily harm. He was
sentenced to 12 months’ imprisonment and one months’
imprisonment or a R500 fine respectively
for those offences.
(d) Mr Khumalo testified
that he operates a tuck shop and three taxis. They bring him an
average income of between R6 000 and
R7 000 per month. He
suggested that being in prison will seriously hamper his membership
of the Taxi Association and his ability
to conduct business as a taxi
owner.
(e) Mr Khumalo’s
arrest had come about when he had heard that the police were looking
for him and he approached an attorney
in Durban to assist him. He
eventually handed himself over to the Pietermaritzburg Police. Three
weeks elapsed between the time
when he first heard the police were
looking for him, and when he handed himself over.
(f) Mr Khumalo stated
that he had a health problem because he had injured his right arm
which required an operation which was scheduled
for the 18
th
February 2017.
(g) Mr Khumalo confirmed
that he was a neighbour of the first accused, but declined to say
whether he knew the other accused. He
testified that his previous
conviction for escaping from lawful custody was that he had escaped
from the holding cells at the Muden
police station.
(h) Mr Khumalo admitted
that he was the owner of a red Toyota Hi-Lux. When it was put to him
that his vehicle was used in the killing
of one of the deceased
persons, he declined to comment. He also declined to comment on the
fact that he had been paid R90 000
by the fourth accused, Miss
Dladla/Zaca for the killing of one of the deceased. He also declined
to comment on the fact that the
state was in possession of video
footage recording that Mr Mdlalose who was killed on the 19
th
March 2016 was being conveyed in Mr Khumalo’s red Toyota on the
day in question.
[20]
Ms Dladla/Zaca, accused 4, also testified at the bail hearing. She
stated that her maiden surname was Dladla and then she had
assumed
her married surname of Zaca. She had no previous convictions and no
other cases pending against her. She was 53 years’
old and had
two homesteads, one at Myandu and one at Pietermaritzburg. Her
further evidence may be summarised as follows:
(a) She lived at the
Myandu homestead until 2005 when she separated from her husband. They
are currently undergoing a divorce.
(b) She has three
children who are all adults, and a child which she had adopted in
foster care. A letter from the Department of
Social Development in
Pietermaritzburg confirmed that fact.
(c) She also has another
adopted child who is in grade 11, and she pays the school fees for
both of them as well as a child who
is in University.
(d) Ms Dladla/Zaca’s
great concern was her health problems because she is a diabetic and
suffers from high blood pressure
and has heart problems. She claimed
to be unable to receive the appropriate medical attention in prison.
(e) She was employed in
the Department of Education and paid by them on a month basis. She
was not however performing any functions
and had not been doing so
for approximately four years because of her health.
(f) The children that are
cared for by Ms Dladla/Zaca do not live with her but live with other
persons nearer to their schools.
The owner of the place that is
rented for the children wishes to sell the premises and Ms
Dladla/Zaca needs an opportunity to go
and find permanent
accommodation for them. Her brother has been assisting and she had
been discussing the matter of their parental
homestead with him.
(g) In cross-examination
Ms Dladla/Zaca admitted that she only knew the third accused and the
fifth accused. She admitted that she
had met the third accused at an
education workshop. She had exchanged telephone numbers with the
third accused. She stated that
she knew the fifth accused but not
very well. They had, however, exchanged telephone numbers.
(h) Ms Dladla/Zaca
admitted that she obtained medication through members of her family
who had given the medication to the Westville
prison authorities. She
had lodged a complaint with the head of Westville prison with regard
to her medical condition. She claimed
not to have received treatment
at the Westville prison hospital despite requesting on many occasions
that she do so. She claimed
that the prison authorities had placed
her life in danger by not ensuring that she received medication when
her personal medication
had run out. She then appeared to shift
ground, suggesting that the state would prevent her from using
medication prescribed by
her own doctors and specialists and brought
to her by her family, because they told her on the last occasion when
it happened that
they would not allow her out again.
(i) As a result of not
receiving medication Ms Dladla/Zaca had gone into a hypoglycaemic
coma on the 26
th
October 2016. This was because her
medication had finished on the 25
th
and the prison doctor
only visited on Thursdays. The head of the prison then contacted her
son and asked him to bring medication,
but it did not arrive on time.
(j) Ms Dladla/Zaca was
challenged on the fact that she attended workshops conducted by the
Department of Education, because she
had not worked for the previous
five years. When it was put to her that she was not invited to attend
those workshops she suggested
that maybe one of the staff members had
spoken to her and she attended the workshop without permission,
because nobody really checked.
She then declined to reply when the
prosecutor put to her that she was never invited to any workshop by
the principal.
(k) Ms Dladla/Zaca also
testified that she had applied to be medically boarded by the
Department of Education in 2015.
[21]
The prosecutor put to Ms Dladla/Zaca that Mr Naidoo, the principal of
the school where she had been employed, Eastwood Primary
School, had
never met her and did not know her. Ms Dladla/Zaca denied this and
said that she had been at the school during 2016.
Despite the threat
to lead this evidence the prosecutor did not do so.
[22]
Ms Dladla/Zaca denied that she knew the complainant in count 2
(attempted murder) as well as the deceased in count 3, Mr Mdlalazi.
She declined to answer when asked whether she knew the deceased in
count 1, Mr Zuma, and the deceased in count 4, Ms Gcabashe.
This was
despite the fact that the prosecutor put to her that the state would
present evidence that she had taken out four policies
on the life of
Ms Gcabashe and was recorded as the beneficiary. Ms Dladla/Zaca
declined to answer.
[23]
It was also put to Ms Dladla/Zaca that she had taken out 35 policies
on the lives of various persons, and that those policies
were current
and valid. Ms Dladla/Zaca then admitted that a number of policies
were taken off her payslip and two policies were
paid, by the bank,
presumably from her account.
[24]
In assessing whether the three appellants have provided exceptional
circumstances or demonstrated on a balance of probabilities
that they
will succeed in the trial, it is relevant to look at the grounds for
denying bail which are set out in sub-s 60 (4),
read with the factors
which may be taken into account, which are set out in sub-s 60 (5),
(6), (7), (8A) and (9).
[25]
When considering the likelihood that the appellants, if released on
bail, would endanger the safety of the public or any particular
person or would commit a schedule 1 offence, the court may take into
account the degree of violence towards others which is implicit
in
the charges against the appellants. In this matter the degree of
violence implicit in the charges against the appellants is
extreme. I
say this because the conspiracy involved identifying persons,
insuring them, then getting them intoxicated or drugging
them and
then running them over with a motor vehicle. That is what is alleged
to have occurred in three of the four counts, with
the other count
involving the use of a firearm to kill the deceased by shooting him.
In my view this is a factor which counts heavily
against all three
appellants. The State also alleges threats of violence against a
potential witness, although this threat is not
alleged to have been
made by one of the accused directly,
[26]
With regard to any disposition of violence on the part of an
appellant, which is evident from their past conduct, the second
appellant has been accused of threatening a police officer with death
or the use of bodily harm against him or his family as well
as of
robbery. With regard to the third appellant, she is alleged to have
attempted to instigate the death of the complainant in
the attempted
murder charge, whilst the complainant was lying injured in hospital.
[27]
With regard to the likelihood that the appellants may seek to evade
their trial, the court was entitled to take into account
the
emotional and family ties of the appellants, their assets, travel
documents which would enable them to leave the country, the
affordability to forfeit the amount of bail and the nature and
gravity of the charge on which they are to be tried. In addition
the
court is entitled to assess the strength of the case against the
appellants and the incentive that they have in consequence
thereof to
attempt to evade the trial. It is also relevant in this regard to
look at the nature and gravity of the punishment which
is likely to
be imposed on them if they are convicted of the charges against them.
Whilst the third appellant has surrendered her
travel documents to
the police, and the first and second appellants claim to have no
passports, the severity of the nature of the
charges, the apparent
strength of the state’s case against all of them, and the
sentences which will almost inevitably be
imposed upon them if they
are convicted, all point to a likelihood that the appellants will
attempt to evade their trial.
[28]
The fact that the appellants may have surrendered themselves to the
police does not assist them in this case. In particular,
with regard
to the first and second appellants they appeared to have had no
choice once they heard that the police were looking
for them, and at
that stage they would have had no idea of the strength of the state
case against them. It is evident from the
affidavit of the
investigating officer, Detective Warrant Officer Naicker, that the
third appellant had no idea of the strength
of the case against her
and was mortified when she learnt of it.
[29]
With regard to the likelihood that the appellants, if released on
bail, would attempt to influence or intimidate witnesses
or conceal
or destroy evidence, the court is entitled to take into account the
fact that the appellants, although denying knowledge
of the identity
of the witnesses, must have some knowledge of the identity of some of
the potential witnesses, particularly where
the witnesses have
already made statements and agreed to testify, as is the case here
with a number of the witnesses, or are persons
to whom they are
related. This is particularly so considering the
modus
operandi
alleged by the state.
[30]
Although there are some items outstanding in the state case which
still require further investigation, the State already
appears
to be in possession of a great deal of evidence which weighs heavily
against the appellants. In my view the imposition
of bail conditions
will not greatly assist in preventing any interference with
witnesses. In this regard there is the evidence
of Detective Warrant
Officer Naicker that the third appellant had approached a nurse at
the hospital where the victim in the attempted
murder charge was
recuperating, in order to attempt to persuade her to administer a
lethal injection to kill the complainant. An
attempt was made to deal
with this in argument, but no evidence was adduced by the appellants.
There are also apparently a number
of s 204 witnesses, and it is not
hard to imagine that the appellants will be able to establish the
identity of those persons,
despite the fact that they are currently
on a witness protection program. There has apparently already been an
attempt to bribe
relatives of the deceased, Mr Mdlalose, which
involved the second appellant and a co-accused.
[31]
With regard to the likelihood that the appellants would undermine or
jeopardise the objectives of the proper function of the
criminal
justice system, including the bail system, the allegation that the
second appellant supplied false information to the
police and lied in
court about his previous convictions is relevant.
[32]
There is also the factor that the release of the appellants will
undermine public peace or security or public order because
during the
hearing in the Regional Court at Greytown there were apparently
competing groups of persons, one supporting the appellants
and the
other wanting them to be imprisoned. The learned magistrate was not
swayed by either group but there is every probability
that the
release of the appellants would engender shock and outrage in the
greater Greytown community. In this regard I do not
bow to public
pressure, but rather decide the issue in what I view as the public
interest. In addition there seems every likelihood
that the safety of
the appellants themselves may be jeopardised by their release.
[33]
In assessing the evidence led by the appellants I am conscious of the
duty of the court
a
quo
to
decide the matter by weighing the interests of justice against the
interests of the appellants to their personal freedom and
particularly the prejudice which they are likely to suffer if they
are detained in custody.
[34]
Mr
Mlotshwa,
who appeared for the appellants, submitted that the learned
magistrate had erred in not advising the appellants that if they
failed
to answer incriminating questions, that could be held against
them. The learned magistrate:
(a) told the appellants
that anything they said during the bail hearing could be used against
them during the trial;
(b) said that during the
bail application they may be called upon to answer some incriminating
questions which they were not obliged
to answer, and which they could
reserve for the trial; and
(c) in his judgment the
learned magistrate recorded that the failure or refusal by an accused
to answer questions (which may be
incriminating) has consequences.
The
right to silence and the right against self-incrimination are choices
to be made by any accused in a sub-s 60(11) application.
See:
S
v Dlamini
S
v Dladla & Others
S
v Joubert
S
v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC), para 93.
[35]
Mr
Mlotshwa
referred
to the medical condition of the appellants, submitting that they
required to be out of prison in order to be able to receive
the
appropriate medical attention that they require. In my view this was
dealt with fully by the learned magistrate, and no criticism
can be
levelled at his judgment in that regard.
[36]
In my view there are no matters, constitutional or otherwise, which
would prevent them remaining incarcerated. The children
and other
dependants of the appellants will all be prejudiced in the sense that
the incomes of the appellants may be reduced or
limited and that will
have an impact upon them. They are not however, in any danger and
there are clearly supporting family members
in each case who can
assist in providing the necessary care, failing which Social Welfare
could do so.
[37]
With regard to the businesses of the first and second appellants
suffering as a result of their imprisonment, that is an inevitable
consequence of imprisonment. In my view it is not a factor which the
learned magistrate could have regarded as an exceptional circumstance
warranting the release of the appellants on bail.
[38]
Assessing all the evidence together, I find myself unable to say that
I am satisfied that the decision of the learned magistrate
not to
grant the appellants bail was wrong. None of the factors adduced by
the appellants, viewed either singularly or collectively,
constitute
exceptional circumstances. In my view they do not come close to
establishing on a balance of probabilities that the
appellants will
be acquitted at the end of their trial
[39]
In those circumstances I make the following order:
The
appeals of the three appellants against the refusal of bail by the
learned magistrate in the Regional Court at Greytown, are
refused.
________________
Lopes
J
Counsel
for the Appellants: Mr S Mlotshwa
Instructed
by: Sandile Shoba Attorneys
Durban
Counsel
for the Respondent: A Truter
Instructed
by: Director of Public Prosecutions
High
Court Building
Pietermaritzburg
Date
of hearing: 3 March 2017
Date
of Judgment: 9 March 2017