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2016
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[2016] ZAFSHC 156
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Nteleki v S (A156/2016) [2016] ZAFSHC 156 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal
number: A156/2016
In
the matter between:
PAULUS
MOHAPI
NTELEKI
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE,
J
HEARD
ON:
12
AUGUST 2016
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON:
19
AUGUST 2016
[1]
On 9 April 2014 the appellant, who was arraigned with five other
accused on an aggravated robbery charge, appeared before the
magistrates’ court at Hennenman and his application for bail
was dismissed on the grounds that he had failed to convince
the court
that the state case against him was weak and that he was at the
relevant time out on bail on a similar case in Welkom.
[2]
He felt aggrieved by the refusal to admit him to bail and approached
this court on appeal. The matter served before my
brother
Kruger J who dismissed the appeal finding,
inter
alia
,
that the magistrate was not wrong in his finding to the effect that
the case which was pending in Welkom indicated that the appellant
had
the propensity to commit violent crimes and that there was, as such,
the likelihood that he would endanger the safety of the
public if
released on bail.
[3]
On 25 June 2015 the appellant again unsuccessfully approached the
magistrates’ court at Hennenman for bail on new grounds
alleging that the robbery charge in Welkom had since been removed
from the roll and he, as such, no longer had pending cases against
him. On refusing bail the learned magistrate once again found
that before bail could be granted in terms of section 60(11)
(a) of
the Criminal Procedure Act (the CPA) the court must be convinced that
exceptional circumstances exist and that new facts
placed before him
did not carry enough weight to convince him to change the original
decision.
[4]
The appellant is aggrieved by the latest decision and now approaches
this court on appeal against the same on an urgent basis
contending,
inter
alia
,
that the court
a
quo
erred in finding that the likelihood exists that he would endanger
the safety of the public or any particular person or shall commit
a
Schedule 1 offence if he were released on bail with Mr Stanley,
appearing
pro
bono
for
him, further submitting to,
inter
alia,
the effect that there exists cause, on evidence before the court
below, to grant bail.
[5]
On its part the state, through Mr Hoffman, opposes the appeal and
supports the decision that no exceptional circumstances warranting
bail were shown to exist.
[6]
On refusing to admit the appellant to bail the court below,
further, noted that it was not clear at
that
stage whether the Welkom matter would stay of the roll or would be
reinstated. The learned magistrate, furthermore,
effectively
found that a letter filed with the state by the municipal manager
gainsaid the appellant’s assertion that his
employment with the
Matjhabeng Local Municipality would be available should he be
released on bail insofar as the letter in question
clearly states
that the appellant’s “
failure
to report for duty constitutes desertion and [he]… dismissed
[himself] by operation of law.”
[7]
In bail proceedings under section 60(11)(b) of the CPA and where the
bail applicant relies on the weakness of the state case
as an
exceptional circumstance justifying his release, he is obliged to
prove, on a balance of probabilities, that he would be
acquitted of
the charge. In that event the prosecution is not obliged to
disclose full details of its case prematurely and
before the time
when the matter is ripe for trial. Until and unless the
applicant has established a
prima
facie
case that the prosecution would fail in its case against him, there
is no duty on the state to rebut his evidence. The
incarceration of an innocent person constitutes exceptional
circumstance warranting release on bail. (See
S
v Mathebula
2010 (1) SACR 55
(SCA) at par [12]).
[8]
In evidence during the original bail application the applicant,
inter
alia
,
advanced a contention that the state did not have a strong case
against him as an exceptional circumstance justifying his release
on
bail and, further, testified that he had three minor children, was
the breadwinner, was employed as shift commander at Odendaalsrus
Fire
Brigade and would attend his trial if released on bail.
[9]
During the bail application on new facts the appellant testified that
he was identified by one of the complainants at the identification
parade but that the complainant in question spent a considerable
time before she could identify him and when she
eventually
pointed him out she remarked that
she thought it was him. He, further, testified that the only
other piece of
evidence the state relies on against him was a pair of
shoes allegedly found on the roof of his place on the basis of a
confession
made by one of his co- accused. He, further,
testified that his release on bail would not endanger the safety of
anyone and
he would not intimidate witnesses. He, furthermore,
testified that he, as at the date of the application, had been in
custody
awaiting trial for some 16 months and 16 days.
[10]
The duty of the court in a bail application is to assess the
prima
facie
strength of the state case against the bail applicant as opposed to
making a provisional finding on the guilt or otherwise of such
an
applicant. Bail proceedings are not to be viewed as a full
dress rehearsal for trial. The making of credibility
findings
of witnesses on the merits of the case against the accused is left to
the trial court which is better placed to assess
such witnesses.
(See
S
v Van Wyk
2005 (1) SACR 41
(SCA) at par [6]).
[11]
It is clear from the record that the appellant relied not only on the
nature of the state case against him in establishing
exceptional
circumstances justifying his release on bail in the application on
new facts. He,
inter
alia
,
presented facts contemplated in section 60(4)(a) as well as in
section 60(9) of the CPA contending, in effect, that his release
on
bail would not endanger the safety of the public or he would not
commit a schedule 1 offence and, further, that he is
not
disposed to committing violent crimes insofar as the Welkom case has
been withdrawn against him.
[12]
Where the facts in sections 60(4) and 60(9) of the CPA are relied
upon in a bail application they are relevant and cannot be
ignored.
In deciding the issue in question the court is obliged to have regard
to,
inter
alia
,
the period the bail applicant has already spent in custody since his
arrest as well as any financial loss which he may suffer
as a result
of his detention. (See
section
60(9) of the CPA;
S
v DV and Others
2012 (2) SACR 492
(GNP) at par [51] and
S
Molefe and Others v The State
[2014] ZAFSHC1 at par [12]).
[13]
To the extent that the court below approached the second bail
application on the footing that the issue before him only concerned
the question as to whether or not the state case against the
appellant was non-existent or weak without reference to the
appellant’s
personal circumstances relative to section 60(4) of
the CPA and the relevant factors set out in section 60(9) of the CPA
he misdirected
himself.
[14]
It is further patent
ex
facie
the record that the court
a
quo
down played the effect of the fact that the appellant no longer had
a pending similar case against him and attached
no
weight whatsoever thereto. The aforegoing is evident from the
learned magistrate’s finding that:
“
At
this stage it is not clear whether this matter would stay off the
roll
or
be put back on the roll by the state again.”
[15]
Although it is true that in terms of section 6(a) of the CPA a charge
withdrawn before an accused could plead to the same may
be reinstated
insofar as the accused is not entitled to a verdict of not guilty in
such circumstances, the fact of the matter is
that, as at the date of
the bail application, the appellant had no such a charge pending
against him. In ignoring that fact
the court below again
misdirected himself and appears to have felt vindicated by the fact
that this court, effectively, confirmed
his earlier decision on
appeal and was, as such and most probably, reluctant to revisit the
same in the light of new facts.
[16]
The onus on the appellant, as a bail applicant, was, in law, limited
to showing, on a balance of probabilities, that there
existed
circumstances which render his case different to the extent of
entitling him to be treated as an exception to the general
position
prescribed by section 60(11)(a) of the CPA which requires
Schedule 6 suspected offenders to remain in
custody until their
trials have been finalised and which, as such, permit him, in the
interest of justice, to be admitted to bail.
Such an onus does not,
in my view, enjoin a bail applicant, in the position of the
appellant, to absolutely convince the court
of the existence of
“
exceptional
circumstances”
contemplated in that section of the CPA as found by the court
a
quo.
The
learned magistrate, therefore, misdirected himself to the aforesaid
extent.
[17]
It may be correct, as effectively contended for the state, that the
appellant did not discharge the onus of showing, on a balance
of
probabilities, that he would not be convicted on the charge preferred
against him, but his case for bail was simply not confined
to the
nature of the state case against him. The fact that there existed no
evidence to gainsay his assertions before the court
below to the
effect that he has no pending cases, there is no likelihood that he
would endanger the safety of the public or commit
a Schedule 1
offence, that he is not a flight risk, that he had been in detention
for more than 16 months at the relevant time,
that he was suffering
financial prejudice in the form of loss of more than R17 000 in
monthly salary and that he would not
interfere with or intimidate
witnesses, was inconsistent with the finding that the interest of
justice did not permit his release
on bail regard being had to the
provisions of section 60(4) read with section 60(9) of the CPA.
[18]
As the court below correctly pointed out, it is always possible that
there may be problems with state case with regard to the
property
allegedly found on the appellant’s premises as well as his
identification by one of the complainants. The
aforegoing
should, however, be seen in the light of,
inter
alia
,
the caution with which the courts, as of duty, approach
identification evidence among others.
[19]
The court below, further, found that the letter from the municipal
manager regarding the appellant’s continued employment
with
Matjhabeng Local Municipality had some bearing on the bail
application. In my view the fact of the relevant letter is,
at
best for the state, neutral insofar as, for an employee to be
regarded as having absconded or deserted from work, there should
be
evidence that he had the intention not to return to work when he
left. In the instant matter it is, in effect, common
cause
between the parties or undisputed that the only reason the appellant
did not report for work was that he was in police custody
following
his arrest on the relevant charge. In labour law an employee in
the position of the appellant is entitled and obliged
to report for
work soon or within a reasonable time after his release from custody
to furnish satisfactory explanation for his
absence from duty.
If the explanation furnished is reasonable and acceptable the
employer is obliged to reinstate such an
employee. (See
Mofokeng
v KSB Pumps
(2003) 12 BALR 1342).
[20]
In my opinion when bail was refused in 2014 the scales were tilted
against the appellant because of,
inter
alia
,
the fact that he had a similar case pending against him in Welkom.
Once that case was withdrawn the scales got adjusted
and titled in
his favour with the result that the cumulative impact of his personal
circumstances on the state case against him
rendered his
circumstances exceptional to the extent of permitting his release on
bail in the interest of justice.
[21]
In my judgment the court below was, therefore, wrong in his decision
refusing bail to the appellant and, as such, same falls
to be set
aside.
[22]
At the end of the hearing and before judgment could be reserved
the parties came together and agreed on the
terms and
conditions on which bail could be granted in the event of the court
finding cause to interfere with the decision of the
court below.
There is, in my view, no fault whatsoever with such proposed
conditions.
ORDER
[23]
In the result the appeal succeeds.
[24]
The decision of the court below is set aside and in its place and
stead is substituted the following:
“
Bail
is granted to the applicant in the amount of R5000-00 on condition
that should he
pay the same he:
a.
shall
report at the Welkom Police Station twice a week;
b.
shall
surrender his passport to the investigating officer Warrant Officer
Dlamini as soon as he is released;
c.
shall
not directly or indirectly interfere with witnesses;
d.
shall
not go to the farm Paradise in the district of Hennenman;
e.
shall
appear in the regional court at Odendaalsrus on 30 August 2016 at
08H00 in the morning and shall remain in attendance until
the matter
is finalized.”
____________
LJ
LEKALE, J
On
behalf of appellant: Adv. MP Stanley
Instructed
by:
Botha & De Jager
Westdene
Bloemfontein
On
behalf of respondent: Adv. R Hoffman
Instructed
by:
Office of Director of Public Prosecutions
Bloemfontein
/PK