About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2016
>>
[2016] ZANCHC 66
|
|
Diseko and Others v S (124/16) [2016] ZANCHC 66 (29 November 2016)
HIGH
COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: CA&R 124/16
In
the matter between:
MODISAOTSILE
DISEKO
1
st
Appellant
THABISO
RAMABUSA
2
nd
Appellant
BONGANI
NOMTSHEKE
3
rd
Appellant
AND
THE
STATE
Respondent
Coram: Lever AJ
JUDGMENT
L
Lever AJ
1.
This
is a bail appeal that comes before me in circumstances where the
three appellants brought a bail application on new facts to
the
Magistrate’s Court Kimberley. This was the second bail
application on new facts. Said bail application was brought before
the Magistrates Court Kimberley on the 29 August 2016 and such court
delivered its judgment denying bail on the 7 September 2016.
The
matter was argued before me on the 24 November 2016.
2.
The
record before me comprised: the record of the original bail
application, which was refused by the Magistrates Court Kimberley
on
the 14 December 2015; the record of the first bail application on new
facts brought on the 26 February 2016 and denied by the
said court on
the 29 February 2016; the record of the second bail application on
new facts brought on the 29 August 2016 and denied
by the said court
on the 7 September 2016. This second bail application on new facts is
the subject of the present appeal.
3.
It
is common cause that the appellants were arrested in the environs of
Kimberley on the 16 November 2017. The investigating officer
Colonel
Mathipa Solomon Makgato gave oral evidence at the first bail
application in December 2015. The investigating officer described
the
circumstances of the appellants’ arrest on that day. The
circumstances of their arrest are: that on the day in question
an
armoured cash delivery van belonging to G4S was robbed of a large
amount of cash; the robbery was executed by about 8 to 10
men, who it
is alleged mostly wore blue Transnet overalls; they wore various
forms of headgear to cover their faces; a red Nissan
1400 bakkie was
parked in front of the armoured vehicle and a green Honda Ballade
sedan was parked behind the motor vehicle; a
number of shots were
fired and a large amount of money was taken from the armoured
vehicle; the robbers used the Honda and the
Nissan bakkie to escape
with the money; the police were contacted; they came across the
robbers in the Honda Ballade, gave chase
and lost them; the Honda was
later found abandoned; shots were fired at the police during this
chase; the police then came across
the Nissan Bakkie and chased it;
the Nissan Bakkie came to a halt and the occupants fled in several
directions; appellant number
one (referred to as accused number one
on the record) was seen jumping the fence of a house in the vicinity;
appellant number one
was apprehended and taken back to the house
where he had jumped the fence; in a back room on the said property
the police discovered
a .38 revolver, blue overalls and hand gloves
together with a head dress; appellant number two (who was referred to
as accused
number three on the record) was identified as the driver
of the Honda and it is not clear from the record where he was
arrested;
it appears that in arresting one of the other alleged
robbers who is not involved in the present bail proceedings and
retracing
his movements, a 9mm pistol was recovered together with
some other items; appellant number three (referred to in the record
as
accused five) was identified as the driver of the red Nissan 1400
bakkie; appellant three attempted to hide himself in the crowd;
as
the police approached appellant number three fled; appellant number
three was apprehended and taken back to the said bakkie;
in the
bakkie a rifle, two loaded magazines, boxes of money and the trolley
that G4S used to transport the money boxes were
found.
4.
Subsequently,
at some time before the last bail application on new facts and at one
of the court dates to postpone the matter, appellants
one, two and
three were informed that DNA evidence linked them to certain items
recovered in the process of their arrest. The DNA
of appellant one
was linked to the handle of the 9mm pistol and its trigger as well as
a hat that was recovered in the process
of arresting the suspects.
The DNA of appellant two was linked to a glove. The DNA of appellant
three was linked to a handkerchief.
The arguments on the relevance
and importance of this DNA evidence will be considered later.
5.
It
is common cause that the appellants face charges that fall under
schedule 6 of the Criminal Procedure Act
[1]
(CPA). Thus s 60(11)(a) has always applied to their various bail
applications and this is true of the present appeal as well. The
effect of s 60(11)(a) of the CPA is that the appellants always bore
the onus of adducing evidence that showed on a balance of
probabilities that exceptional circumstances exist where the
interests of justice allowed them to be admitted to bail.
6.
Appellant
number one has two previous convictions. In 1996 he was convicted of
theft and was sentenced to four years imprisonment
which was wholly
suspended. In 2005 he was again convicted of theft and sentenced to a
fine of R500.00 or six months imprisonment.
He apparently also has a
case pending against him. The present status of this pending matter
will be dealt with below.
7.
Appellant
number two has no previous convictions, but he does have a pending
case of armed robbery against him. The investigating
officer at the
time of the first bail application, stated that this pending matter
was with the Senior Public Prosecutor for a
decision. The present
status of this pending matter will also be dealt with below.
8.
Appellant
number three has no previous convictions and no pending matters
against him.
9.
An
identity parade was conducted shortly before the second bail
application. This was the new fact that was raised in such bail
application. It transpired that there was no room with a one-way
mirror available, in which to conduct the said identity parade.
Only
two of the potential five eye-witnesses available were prepared to
participate in the identity parade in those circumstances.
The others
feared being identified as witnesses and refused to participate in
the identity parade.
10.
The
above statement of facts represents a fair summary of the factual
matrix within which the first two bail applications were decided.
To
this we must add the new facts that the appellants raised in the
third bail application, the subject of the present appeal.
The new
facts raised by the appellants, in essence consisted of, a
re-emphasis of their personal circumstances. The fact that they
had
been incarcerated for nearly a year at the time that the third bail
application was launched. Their continued detention appeared
to be
indefinite as there appeared to be no prospect of their trial being
started before the end of this year and that the crowded
roll of the
courts made it unlikely that the trial would be commenced in the
foreseeable future. In support of this perception
they contended that
a request had been made for the docket on their behalf. This request
was denied as the matter was still being
investigated.
11.
In
these circumstances, they perceived their continued detention as
being punitive in nature. They and their families are ordinarily
resident in Bloemfontein. Their detention had made it difficult for
family members to visit them. It was placing stress on their
relationships with their partners and wives. Those that had children
could not maintain their relationship with their children.
They were
out of touch with their businesses, which no longer provided an
income. These factors caused them severe emotional stress,
anxiety
and psychological harm. This emotional stress and anxiety was also
raised as a new fact in the last bail application. Furthermore,
appellant two was diagnosed as a diabetic between the second and
third bail application and he complained that it was difficult
for
him to obtain a regular supply of the correct medication.
12.
Although
a formal charge sheet has not yet been drawn up, Mr Hollander who
appeared for the respondent, indicated that the appellants
had been
arrested on charges of robbery with aggravating circumstances,
attempted murder and theft. Mr Hollander indicated that
a decision
had been made to transfer the matter to the Regional Court and that a
date had been arranged for January 2017. At this
court date the
charge sheet would be presented to the appellants and they would be
given access to the docket.
13.
Turning
to the law that governs the present position. As already stated, it
is common cause that s 60(11)(a) of the CPA applies.
Furthermore, as
this is an appeal against the refusal of bail in the third bail
application, the provisions of s 65(4) of the CPA
applies. Section
65(4) of the CPA 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.”
14.
As
already set out above s 60(11)(a) requires the appellants to adduce
evidence that satisfies the court on a balance of probabilities
that
the necessary exceptional circumstances exist
[2]
that the interests of justice permit their release.
15.
The
court entertaining the bail application should consider all the facts
that arise in the new bail application together with those
that arose
in the previous bail applications.
[3]
16.
Section
60(11)(a) does not prohibit bail for certain offences. It allows the
court the flexibility to assess each case on its merits
in order to
make a decision on whether it is in the interests of justice to award
bail in the particular circumstances of each
case.
[4]
17.
The
requirement of “exceptional circumstances” in s 60(11)(a)
has been applied as a flexible concept that is open to
judicial
interpretation on a case by case basis. Circumstances that may be
considered as ordinary in one case may be interpreted
as exceptional
in another.
[5]
In Mohammed’s
case Comrie J in dealing with the manner in which s 60(11)(a) was to
be approached stated: “So the true
enquiry, it seems to me is
whether the proven circumstances are sufficiently unusual or
different in any particular case to warrant
the applicant’s
release. And ‘sufficiently’ will vary from case to
case.”
[6]
18.
The
question of the constitutionality of s 60(11)(a) of the CPA has been
settled by the Constitutional Court in Schietekat’s
case
[7]
.
Although the question of constitutionality is not an issue in the
present appeal, Schietekat’s case gives guidance in the
manner
in which s 60(11)(a) is to be applied.
19.
Schietekat’s
case
[8]
reaffirms that in cases
other than those that fall under s 60(11)(a), the starting point in
considering when to grant bail is s
35(1)(f) of the Constitution
[9]
,
which entrenches the right to bail, subject to reasonable conditions
if the interests of justice permit. However, in cases that
fall under
sub-section (11)(a), the starting point is that continued detention
is the norm.
[10]
20.
In
Schietekat’s case, the Constitutional Court was at pains to
point out that there is a fundamental difference between the
“…objective of bail proceedings and that of the trial.
In a bail application the enquiry is not really concerned with
the
question of guilt. That is the task of the trial court. The court
hearing the bail application is concerned with the question
of
possible guilt only to the extent that it may bear on where the
interests of justice lie in regard to bail. The focus at the
bail
stage is to decide whether the interests of justice permit the
release of the accused pending trial; and that entails, in
the main,
protecting the investigation and prosecution of the case against
hindrance.”
[11]
21.
Sub-section
60(11) singles out persons facing serious charges as set out in
schedules 5 and 6 for more stringent treatment.
[12]
22.
In
relation to the phrase “interests of justice”, the
Constitutional Court points out that:
“
It
is a useful term denoting in broad and evocative language a value
judgment of what would be fair and just to all concerned. But
while
its strength lies in its sweep, that is also its potential weakness.
Its content depends on the context and applied interpretation.
It is
also, because of its depth and adaptability, prone to imprecise
understanding and inapposite use.”
[13]
23.
In
s 60(4), (9) and (10) the phrase “interests of justice”
is intended to have a narrower interpretation, which aligns
itself to
the ‘interests of society’ or “…(…the
interests of justice minus the interests of the
accused)”
[14]
.
Whereas in s 60 (1), (11) and (12) the meaning assigned to that
phrase is the broader one contemplated in the constitution.
[15]
24.
In
setting out what s 60(11)(a) entails, the Constitutional Court in
Schietekat’s case stated:
“
Section
60(11)(a) contemplates an exercise in which the balance between the
liberty interests of the accused and the interests of
society in
denying the accused bail will be resolved in favour of the denial of
bail, unless ‘exceptional circumstances’
are shown by the
accused to exist.”
[16]
25.
In
dealing with examples of what might constitute ‘exceptional
circumstances’ as contemplated by s 60(11)(a) of the
CPA, the
Constitutional Court set out:
“
In
requiring that the circumstances proved must be exceptional, the
subsection does not say they must be circumstances above and
beyond,
and generally different from those enumerated. Under the subsection,
for instance, an accused charged with a Sch 6 offence
could establish
the requirement by proving that there are exceptional circumstances
relating to his or her emotional condition
that render it in the
interests of justice that release on bail be ordered notwithstanding
the gravity of the case.”
[17]
(footnote omitted) … “In the final analysis, the
evaluation is to be done judicially, which means that one looks at
substance, not form.”
[18]
26.
The
term exceptional circumstances holds no hidden meaning and is to be
applied judicially.
[19]
27.
The
appellants in their various bail applications stated that they
intended to stand their trial and any fears that they would not
stand
their trial could be adequately dealt with by imposing appropriate
conditions of bail.
28.
The
appellants in the third bail application, the subject of this appeal,
restated their personal concerns relating to their respective
businesses, their personal relationships with family members and
finally that as a result of their incarceration for almost a year
at
the time that the said bail application was heard their emotional
distress and anxiety. It is common cause that at the time
this appeal
was heard that the appellants had been incarcerated for more than a
year.
29.
The
learned magistrate in dealing with the bail application, to which
this appeal relates, dealt with the issues raised by the appellants
globularly under the rubric of personal circumstances. The learned
magistrate came to the conclusion that whilst there was a difference
in emphasis, there were no new facts set out in the said bail
applications. In adopting this approach globular approach, he failed
to appreciate that the emotional stress and anxiety raised by the
applicants in their respective affidavits was new and raised
for the
first time in the bail application being the subject of this appeal.
To this extent, Mr Hollander who appeared for the
applicants,
correctly conceded that the learned magistrate erred.
30.
In
these circumstances, the next step is for this court to consider
whether the emotional stress and anxiety raised by the appellants
in
their respective affidavits constitutes exceptional circumstances
that permits their release on bail. At the time of writing
this
judgment the appellants had been incarcerated for just over a year.
There was no indication on the record as to when the appellants
could
expect to come to trial. Despite applying in writing for access to
the docket the respondent had refused such access. Mr
Pistorius, who
appeared on behalf of the appellants, referred to their respective
affidavits and stressed that the appellants perceived
their continued
detention in such circumstances as indeterminate and punitive.
31.
Mr
Hollander on behalf of the respondent indicated that a decision had
been made to transfer the matter to the regional court and
that a
date had been set for January 2017. Furthermore, Mr Hollander
indicated that the date in January 2017 was merely for presenting
the
appellants with a formal charge sheet, making the docket available to
them, finalising the legal representation of the accused
in the
matter and setting a date for the commencement of the trial. Mr
Pistorius pointed out that the regional court did not have
a
continuous roll and that even with the date now provided by Mr
Hollander and having regard to his personal experience of the
congested roll in the Kimberley regional court he did not expect the
matter to be finalised before the end of next year.
32.
Throughout
these proceedings the only ground of opposing the applications for
bail was that the appellants were accused of a serious
offences
covered by schedule 6 and that they had a strong case against the
appellants. The investigating officer did raise other
issues, but
failed to establish a factual basis for these concerns.
33.
Other
than that, it was never seriously contended that the appellants were
a flight risk and that they would not stand their trial.
The
Investigating Officer confirmed their respective addresses and family
ties to Bloemfontein. It is only appellant one who is
in possession
of a passport and the Investigating Officer disclosed that he made
enquiries with the Department of Home Affairs
and there is no record
of appellant one ever having left the country.
34.
Mr
Pistorius conceded that the appellants had a prima facie case to
answer in regard to the DNA, the circumstantial and other evidence
that appears to be available to the State. However, Mr Pistorius
submitted that the appellants had not yet had access to the docket
to
determine or assess how strong the case against them is. In any event
he submitted that the even though the charges were serious
and
covered by schedule 6 the appellants were still entitled to be
presumed innocent.
35.
It
now appears that the investigations are complete. The State
presumably has statements from its witnesses and has secured the
evidence it requires to proceed with the trial. There was no evidence
to suggest that any of the appellants had or would interfere
with
witnesses or evidence.
36.
The
previous convictions of appellant one are old and cannot be said to
show a propensity to threaten anyone. In any event there
is no
evidence that would suggest that any of the appellants would or had
threatened anyone.
37.
It
is necessary to briefly mention the issue of the pending matters
against appellant one and two. It appears from the record that
appellant one disclosed the matter pending against him to the
Investigating Officer. The investigating officer states that
appellant
two did not disclose the pending matter against him.
However, from the record it is evident that the Investigating Officer
concedes
that at some point this pending matter against appellant two
was withdrawn by the State and the Investigating Officer states that
it was now with the Senior Public Prosecutor for a decision.
Presumably, this refers to a decision on whether to reinstate such
charge.
38.
The
record does not establish that appellant two knew that a decision was
pending from the Senior Public Prosecutor. In the circumstances,
appellant two must be given the benefit of the doubt. The pending
matter against appellant one dates back to 2011. If it has been
pending for 5 years and nothing has come of it to date, it is
doubtful as to whether it will ever materialise as a charge against
appellant one. Similarly, with appellant two, while the court does
not know why the relevant charge was withdrawn, it is fair to
infer
that if there was a reasonable case against him and the State was
ready to proceed with the trial such charge would not have
been
withdrawn. In these circumstances, such pending matters cannot count
for much against appellants one and two. Appellant three
has no
previous convictions and no pending matters.
39.
At
this point the appellants have been incarcerated as awaiting trial
prisoners for just over a year. Mr Hollander submitted that
the State
was not responsible for any delays and that the court was kept up to
date with the progress relating to the forensic
evidence and the
further accused that were added to the trial. This may be so, but
from the record the appellants cannot be held
responsible for the
delays either. They have been deprived of their liberty for over a
year.
40.
They
state in the bail application, being the subject matter of this
appeal that as a result of their lengthy incarceration and
the fact
that there was apparently no sign of the matter coming to trial that
they perceived their detention as indeterminate and
punitive. That
this caused emotional distress and anxiety at various levels. The
Investigating Officer investigated physical ailments
with the nursing
staff where the appellants are incarcerated, but it is evident that
the Investigating Officer made no effort to
investigate the emotional
or psychological wellbeing of the appellants. In these circumstances,
the evidence of the appellants
relating to their emotional stress and
anxiety must be accepted as uncontested.
41.
It
was only at the hearing of this bail appeal that the appellants were
informed of the court date in January 2017.
42.
In
these circumstances the issue of the emotional stress and anxiety
coupled to the lengthy period of their incarceration as well
as the
cumulative effect of the other factors mentioned above, does in the
present circumstances constitute ‘exceptional
circumstances’
that would permit the appellants to be awarded bail despite the fact
that they are facing charges under schedule
6 of the CPA. Any fears
that the appellants may not stand their trial could be minimised as
far as possible by appropriate bail
conditions.
43.
At
the hearing of this appeal I put to Mr Pistorius that in the event of
my upholding the appeal I was considering whether it was
desirable to
refer the matter back to the magistrate to hear evidence on the
appropriate bail conditions and the amount at which
bail was to be
set.
44.
Mr
Hollander supported the proposal of referring the matter back to the
magistrate if I upheld the appeal. Mr Pistorius suggested
that I
should set bail at an amount in the region of R20 000.00 to R30
000.00 and order that the appellants report to their local
police
station on a daily basis. I believe the reason why Mr Pistorius
proposed that I deal with setting the bail and the appropriate
conditions is to avoid further unnecessary incarceration of the
appellants. I believe there is some value in those concerns. However,
I informed Mr Pistorius that I had in mind setting bail at R30 000.00
each but that I had no idea if this was realistic for the
appellants.
Mr Pistorius asked his instructing attorney to contact the
appellants’ families and find out if the appellants
would be
able to raise such amount. After taking an instruction, Mr Pistorius
informed that the appellants would be able to raise
R30 000.00 each
for bail in the matter.
In
the circumstances the following order is made:
1)
The
bail appeal of each of the appellants is upheld.
2)
Bail
is set for the appellants in the amount of R30 000.00 (thirty
thousand Rand) each.
3)
The
first appellant is to surrender his passport to the Investigating
Officer before being released on bail.
4)
The
appellants are to report to the police station nearest to their
residence on a daily basis between the hours of 7 am and 7 pm.
5)
The
appellants are to inform the Investigating Officer in writing, within
24 hours of being released on bail, which police station
is nearest
to their residence and to which they will be reporting on a daily
basis.
6)
Save
for attending the trial in this matter the appellants are not to
leave the magisterial district of Bloemfontein without first
obtaining the prior written consent of the Investigating officer.
_________________
Lawrence
Lever
Acting
Judge
Northern
Cape High Court, Kimberley
On
behalf of Appellants :
Adv P.Pistorius
Mzuzu
Attorneys
On
behalf of Respondents:
Adv Q Hollander
DPP
Date
of hearing:
24 November 2016
Date
of Judgment:
29 November 2016
[1]
Act 51 of 1977.
[2]
S v Yanta
2000 (1) SACR 237
(TkH) at 241 g.
[3]
S v Vermaak
1996 (1) SACR 528
(T) at 531 e-g.
[4]
S v Dlamini
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at p 88h-i; S v
Sivela
1999 (2) SACR 685
(W) at 705f-g.
[5]
S v Mohammed
1999 (2) SACR 507
(C) at 514a-d; S v
C 1998 (2) SACR 721 (C).
[6]
Mohammed’s case above at 515d.
[7]
S v Dlamini; S v Dladla and Others; S v Joubert;
S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC).
[8]
Schietekat’s case above at para 5.
[9]
Act 108 of 1996.
[10]
Schietekat above at p 84d-e.
[11]
Schietekat above at p 63g to 64b.
[12]
Schietekat above at p 65b.
[13]
Schietekat above at p 76h to 77b.
[14]
Schietekat above at p 78a to c.
[15]
Schietekat above at p 77e.
[16]
Schietekat above at 85c-d.
[17]
Schietekat above at 89e-f.
[18]
Schietekat above at 90a.
[19]
Schietekat above at 100f.