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[2016] ZAFSHC 178
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S v Rabele (76/2014) [2016] ZAFSHC 178 (29 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION,
BLOEMFONTEIN
Case
number: 76/2014
In the
matter between:
THE
STATE
Applicant
and
MACEBO
JOSEPH
RABELE
Respondent
HEARD
ON:
28 SEPTEMBER 2016
JUDGMENT
BY:
MOLITSOANE, AJ
DELIVERED
ON:
29
SEPTEMBER 2016
[1] This
is an application for the release of the accused on warning to be
revoked and consequently for him to be kept in custody,
pending
finalisation of a partly heard criminal trial against him.
[2] In
support of its application the state called two witnesses.
The first witness is the investigating officer
of cases which are
pending in the Welkom Regional Court. Essentially of importance in
his testimony is that while on warning the
accused was arrested for
conspiracy to commit armed robbery, contravention of section 36 of
the General Laws Amendment Act, having
being allegedly found in
possession of a motor vehicle and that accused is also still to be
charged with unlawful possession of
a firearm.
[3] The
second state witness is the investigating officer in the current
case. He testified that he is not the original investigating
officer
of this case. He requests that the release of the accused on warning
be terminated. He testified that the accused in his
bid to be
released on bail/warning in this case he failed to disclose the
previous convictions of abduction and theft.
[4] He
also indicated that while on bail the accused was arrested on other
matters of attempted robbery, contravention of section
36 of the
General Laws Amendment Act and he is of the opinion that the safety
of the public is at risk as a result.
[5] It
was put to him by counsel for the accused that indeed the accused in
his bid to be released on bail, in his affidavit handed
in the lower
court only indicated that he had a previous conviction of robbery of
1990.
[6] It
was further put to him that the previous convictions he did not
disclose were thirty six years and twenty six years old
respectively.
That was
the state case.
[7] The
accused then testified in his opposition and he did not call a
witness. He admitted that he did not mention the convictions
of
abduction and one of theft. He further indicated that at the time
when he applied for his release on bail he was legally represented.
[8]
According to him he informed his legal representative of these
previous convictions and the latter informed him that he will
not
mention them in the accused's affidavit as they were old.
[9]
During cross-examination it was put to him that though he claims he
informed his legal representative about the previous conditions,
he
himself confirmed in court during the bail application that he only
had one previous conviction.
[10]
Section 72A of the Criminal Procedure Act (the CPA) provides as
follows:
"Notwithstanding
the provisions of section 72(4), the provisions of sections 68 (1)
and (2) in respect of an accused
who has been granted bail, are
with the necessary changes, applicable in respect of accused who has
been released on warning."
This
therefore means that while the bail of an accused person can be
cancelled, his release on warning can also be terminated -
See
Classsen
v
Minister
of
Justice
and
Conditioned
Development and Another
2010 (2) SACR 451
(WCC). Section
35(1)(f) of the constitution provides that ..." everyone who is
arrested for allegedly committing an offence
has the right ... to be
released from detention if the interest of justice permit subject to
reasonable conditions."
[11]
Therefore where one has been released on warning, such an order
cannot be terminated unless the interest of justice requires
so. In
S
v
Coetzee
[1997] ZACC 2
;
1997 (1) SACR 379
(cc) O’Regan
J
identified two relevant aspects of freedom:
'The
first is concerned particularly with the reasons for which the state
may deprive someone of freedom, and the second is concerned
with the
manner whereby is deprived of freedom."
[12] She
goes on further to say:
"Our
constitution recognises that both aspects are important in a
democracy the state may not deprive its citizens of liberty
for
reasons that are not acceptable, nor, when it deprives its citizens
of freedom for acceptable reasons, may it do so in a manner
which is
procedurally unfair."
[13]
Section 68(1) and (2) provides guidelines as in what circumstances
may termination of the release on warning should be done.
[14]
Section 68(1) provides as follows:
"Any
court before which a charge is pending in respect of which bail
has been granted may, whether
the accused has been released or not, upon information on oath
-
(a)
that the accused is about to evade justice or is about to abscond in
order to evade justice;
(b)
the accused has
interfered or threatened or attempted to interfere with witnesses;
(c)
the
accused has
defected or
attempted to
defeat
the
ends of
justice;
(d)
the accused poses a
threat to the safety of the public or of a particular person;
(e)
the accused has not
disclosed or has not correctly disclosed
all his or her previous
convictions in
the
bail
proceedings
or
where his
or her
true
list of previous
convictions
has
come
to
light after his/her
release
on
bail;
(f)
further
evidence
has
since
become
available
or factors
have arisen, including
the fact that the accused
has furnished
false
information
in
the bail proceedings,
which might have affected the decision to grant
bail, or
(g)
it is in the interest of
justice to do so."
[15] The
grounds that may lead to the cancellation of bail or termination of
the release on warning are related to the criteria
considered in
terms of section 60 (4) of the CPA at the initial stage when
bail is being considered -
see
in this regard
S
v
Kyriacou
2000 (2) SACR 704.
In Kyriacou
Lombard
J
had this to say:
“…
the
golden
threat
of
the interest
of
justice
continues
to
be extremely
relevant
if not dominant
in
all
bail
applications
and
has also
found
its
way into
the constitution."
[16] The
consideration of the interest of justice is in my view also an
important consideration in the cancellation of bail or termination
of
the release on warning.
ISSUES
[17] It
appears to the court that the main reasons for the application for
termination of the release of accused on warning
is twofold, namely:
(1)
That the accused did not disclose all his previous convictions during
bail application; and
(2)
that the accused poses a threat to the safety of the public .
FACTS
NOT IN ISSUE
[18] The
following facts are not in issue:
(1)
That during his bail application accused did not disclose that he was
previously convicted of abduction
and theft.
(2)
That while he was released on bail/warning he was arrested again on
other charges.
EVALUATION
[19] It
is not in dispute that the accused did not disclose the previous
convictions of abduction and theft. It is further not in
dispute that
while he was released on warning he was arrested on other charges.
What,
however, is important to consider is whether his failure to disclose
his previous convictions and further his subsequent arrest
on other
charges while on warning warrant that his release on warning be
terminated is envisaged in section 72A read with sections
68(1) of
the CPA?
[20]
According to the accused he did inform his attorney that he had
previous convictions of abduction and theft. He further indicated
that his attorney informed him that these convictions were
very
old and it was not necessary for the accused to disclose
them. These assertions are undisputed.
[21] In
considering these assertions of the accused for not disclosing the
previous convictions, the court must bear in mind that
the state
bears an onus to satisfy the court on a balance of probabilities that
there are sufficient grounds or information on
oath for the
termination of the release of the accused on warning.
[22] It
should be noted that
(1)
the accused was convicted of abduction in 1988, about thirty six
years ago;
(2)
the accused was convicted of theft in 1978, about 26 years ago.
[23] In
terms of section 271A of the CPA, certain convictions fall away as
previous convictions after expiration of ten years. It
has been
submitted by counsel for the state that this related to sentence only
and not to section 60 (11B) in bail proceedings.
The court shares the
same sentiments with counsel for the state.
[24] The
question, however, which the court has to answer is whether a
possibility exists that the accused might have received erroneous
advice from his legal representative about not disclosing the
previous convictions which are thirty six years and twenty six years
old respectively. State contends that it is not possible as he
disclosed one of 1996.
[25] It
is my view that in light of the provision of s271A, of the CPA, it is
not farfetched that the accused might have received
erroneous advice
from his attorney. It is to be noted that the disclosure of the
previous conviction was made by way of an affidavit.
In practise it
is not uncommon that the legal representative may read into the
record the affidavit of the accused and the accused
would be asked to
confirm that which has been read in the record.
[26] In
the absence of any evidence to the contrary it is my considered view
that it is possible that the accused was advised not
to disclose his
previous convictions of abduction and theft.
[27] The
second consideration is whether the accused poses a risk of threat to
others when he has been released on his own recognisance.
The state
argues that while on warning he was arrested and charged on other
matters.
[28] This
factor stands to be assessed in light of the provisions of sections
60 (4) (a) and 60(5) of the CPA.
Section
60(4) (a) of the CPA provides as follows:
'The
interest of justice does not permit the release from detention of an
accused while one or more of the following are established.
(c)
where
there
is
a
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
..."
[29]
Section 60(5) of the CPA on the other hand deals with factors the
court must consider in making a determination in terms of
60(4) of
the CPA. The list in section 60(5) of the CPA is not exhaustive.
[30] In
S
v
Patel
1970 (3) SA 565
(W)
bail was refused as a result of the previous conviction of the
accused and his actions immediately prior to his application
for
bail.
[31] One
must, however, bear in mind the primary aim of the release of the
accused on warning or on bail, namely, whether if released
on warning
or bail is granted to him, the accused will stand his trial.
[32]
Admittedly while the accused was released on warning he was arrested
on other similar offences. He has not been convicted of
the said
offences.
[33] In
S
v
Du
Plessis
en
'n
Ander
1993 (2) SACR 379
(1) at 384
Van Dijkhorst
J
had this to say:
"Die
toets by 'n borgaansoek is dat dit toegestaan moet word indien die
regspleging nie daardeur benadeel sal word nie. Dit
is al gese so
lank terug soos in R v McCarthy
1906 TS 657
op 659. Die grondslag van
die reel is dat vermoed word dat 'n beskuldigde onskuldig is en dat
dit onbillik is dat onskuldiges in
aanhouding sit. Die belangrikste
vrae wat beantwoord moet word is:
(a)
sal die beskuldigde sy
verhoor
bywoon;
(b)
sal die beskuldigde die
regspleging benadeel deur met
getuies in te meng of die
polisie ondersoek in die wiele te ry?"
[34] The
test remains whether the interest of justice requires that his
release on warning should be terminated.
[35] It
needs to be mentioned that at one stage a warrant for his arrest was
authorised and his bail money forfeited to state. He
however went
back to court and gave an explanation to court as to his failure to
attend court. The court was satisfied with his
explanation and
released him on warning. He has since attended court religiously.
[36] I
can accordingly not find that there are any sufficient reasons to
terminate his release on warning and I accordingly cannot
therefore
find that the interest of justice requires that his release on
warning should be terminated and consequently I make the
following
order:
ORDER
The
application by the state in terms of s72A of the CPA for the
termination of the release of the accused on warning is hereby
dismissed.
____________________
P
MOLITSOANE, AJ
On behalf
of applicant: Adv F Pienaar
Instructed
by: The Director of Public Prosecutions 3rd Floor
Waterfall
Centre BLOEMFONTEIN
On behalf
of respondent: Adv. PL Van der Merwe
Instructed
by
Bloemfontein
Justice Centre
Southern
Life Plaza Building
41
Charlotte Maxeke Street
BLOEMFONTEIN