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[2016] ZAGPPHC 187
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Rauf and Another v S (A84/16) [2016] ZAGPPHC 187 (18 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:A84/16
DATE:
18 MARCH 2016
In the matter
between:
RANA ABDUL
RAUF
................................................................................................
1ST
APPELLANT
MOHAMMAD
SHABBIR
........................................................................................
2ND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Fabricius J,
This is an appeal
against the order made by Molopa-Sethosa J on 19 May 2015 in terms of
Appellants’ bail was cancelled and
the money forfeited to the
State.
Leave to appeal
against that order was refused by the learned Judge, but granted by
the Supreme Court of Appeal on 1U December 2015.
In my view these
proceedings are inherently urgent and therefore require that an order
be made today with brief, but concise reasons
being given.
The relevant events
are the following:
On 10 January 201U,
the learned Judge granted the Appellants (plus one other), bail of R
10 000 each on a number of conditions,
condition 2 reading as
follows: “They do not make contact directly or indirectly with
witnesses whom they know, who have
resided on the premises of accused
2’s shop”. Accused 2 a quo is the First Appellant herein;
On 15 May 2015, the
State brought an application in terms of the provisions of
s. 66
(1)
of the
Criminal Procedure Act 51 of 1977
as amended, that bail be
withdrawn on the basis that the said condition had been violated;
It was alleged that
a certain witness received threats not to testify in Court and were
also offered money not to do so;
The Investigating
Officer, Warrant Officer Van den Berg, gave evidence in great detail
and was thoroughly cross-examined as well.
His evidence comprises
some 80 pages of the record. He testified that one of the intended
witnesses told him that he was paid not
to come to Court. He was also
shown a photo of a co-accused who had been murdered;
He also testified
that another witness was repeatedly contacted and intimidated and
given information that indicated that she was
under observation, and
that also led to the discovery of fire-arms in her previous premises;
Affidavits of
Warrant Officer Van den Berg and the other witness, Mrs Meyer, were
also handed in as exhibits;
That comprised the
application for the State. The record (p. 182) then indicates that
Appellants’ Counsel debated the interpretation
of
s. 66
(1) of
the
Criminal Procedure Act; and
submitted that the State first had to
prove its case before there was an onus on the Appellants to answer
the allegations against
them. Argument on this topic then proceeded,
the Court a quo analysed the evidence and made a “Ruling”
that the bail
be cancelled;
The learned Judge
then said that the State had discharged its onus and that the
Appellants could proceed with their evidence. Mr
Van der Westhuizen
on behalf of the Appellants clearly accepted this state of affairs,
if I can term it that (p. 211), and on the
next Court day, a Monday,
called the Appellants to give evidence;
This they did by way
of written affidavits, exhibits ‘F’ and ‘G\ A
further affidavit by a A. Swahib, was also
handed in. All were read
into the record. The Appellants denied any breach of the said
condition and the said Swahib produced a
version relating to one of
the State witness' conduct which was never put to the Investigating
Officer for comment;
The Court a quo was
then addressed on the merits, and gave a fully reasoned judgment
which comprises some 19 pages of the record.
The Appellants’
bail was cancelled and the bail money forfeited to the state.
On behalf of the
Appellants it was contended before us that the State had failed to
prove its case on the balance of probabilities.
I do not agree. The
evidence of Mrs Meyer is particularly damning in this context, and
the Court a quo analysed it fully. No material
misdirection on the
facts is apparent to me. Someone on behalf of the Appellants clearly
contacted her and intimidated her. This
is abundantly clear. There is
also no reason to reject the evidence of Warrant Officer Van den
Berg, whom the learned Judge found
to be a credible and honest
witness. There is no basis to interfere with this credibility
finding. It must also be noted that the
Appellants themselves did not
give oral evidence.
Appellants’
other main point was that the Court a quo “quite irregularly
entreated the Appellants’ bail before
they had even presented
their case. This is factually not so as the record will indicate (p.
211). The order was provisional and
Appellants’ Counsel
accepted that, and proceeded with Appellants’ case on that
basis
The result is that
there are no merits in the appeal. It is dismissed.
JUDGE H.J
FABRICIUS
JUDGE OF THE HIGH
COURT GAUTENG DIVISION PRETORIA
And
I Agree
OODGEA. A. LOUW
JUDGE OF THE HIGH
COURT GAUTENG DIVISION PRETORIA
And I Agree
JUDGE W. HUGHES
JUDGE OF THE HIGH
COURT GAUTENG DIVISION PRETORIA