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[2016] ZAKZPHC 114
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Khanyile v S (12428/2016) [2016] ZAKZPHC 114 (22 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 12428/2016
In
the matter between:
BONGINKOSI
GIFT
KHANYILE APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
CHILI
J:
[1]
This is an appeal against the Learned Magistrate's refusal to grant
the appellant bail pending his trial on charges which emanated
from a
campaign by the students at various institutions of learning
[hereinafter referred to as "the Fees Must Fall campaign"].
[2] In
his bail application before the Learned Magistrate in Durban on the
5
th
October 2016, the applicant presented his evidence by
way of numerous affidavits. He
h
subsequently filed a supplementary affidavit dated the 10
th
October 2016. The state on the other hand led evidence of 2
witnesses, the Investigating Officer W/O De Beer and Colonel Xulu.
Colonel Xulu's testimony in the main, related to the contents of the
video footage which was presented to court as evidence.
[3]
The appellant's personal circumstances are as follows. He was born on
the […] December 1989 at Entumeni, Eshowe. He is
a final year
student at Durban University of Technology (OUT), ML Sultan Campus in
Durban. At the time of his arrest he resided
at the University's
commune situated at […] Mansfield Road in Durban. He is single
and has 3 children aged 4, 3 and 2 years
respectively. He submitted
in his affidavits that he is not a flight risk and in amplification
stated that he does not own a passport
or any travel document. He is
a student [so he submitted] and he intends pursuing his studies. With
regards to the charges he submitted
that he intends pleading not
guilty and added that he elects to exercise his right to remain
silent. The appellant undertook not
to interfere with state witnesses
or evidence in the state's possession. In addition he stated that he
has no knowledge of who
the state witnesses are.
[4]
The appellant submitted that his continued incarceration would cause
him prejudice. He stated that it would prevent him from
sitting for
his final examinations which were otherwise scheduled to resume on
the 31st October 2016. In the result, he would not
be able to
graduate. In his supplementary affidavit dated the 1oth October 2016
the appellant added that he was due to start in-service
or practical
training at Ethekwini Metropolitan Municipality on the 15th November
2016; an essential component of his academic
qualification. He also
dealt with the contents of the video footage in which he, by his own
admission, made certain utterances.
I return to this aspect later in
the judgment. He re-iterated an undertaking he made in the initial
affidavit, that he would not
breach bail conditions if allowed out on
bail.
[5]
On the 17
th
October 2016 the appellant was denied bail and
he subsequently brought another application on new facts. He again
presented evidence
in the form of an affidavit. In his affidavit on
the new facts the appellant re-iterated that he is not a flight risk
and further
that he would abide whatever bail conditions the court
may impose. He disputed having breached any bail conditions before
and also
dealt with a matter in respect of which he was released on
warning in February of 2016 [the February matter]. I return to this
aspect later in the judgment. The appellant was again denied bail and
hence the present appeal.
CURRENT
BAIL APPEAL
[6]
S65
(4) of the
Criminal Procedure Act 51 of 1977
[hereinafter "the
Act"] provides that 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. The appellant's
appeal turns on the question
whether the Learned Magistrate was wrong
in concluding that the interest of justice do not permit his released
from custody. When
arriving at that conclusion the Learned Magistrate
was guided by the provisions of
s60
(4} of the Act. It is apposite to
quote this section in its entirety:
"
S
60
(4) The interests of justice do not permit the release from
detention of an accused where one or more of the following grounds
are established:
(a)
Where there is the 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 1offence; or
(b)
where there is likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial;
or
(c)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt to influence or intimidate
witnesses
or to conceal or destroy evidence; or
(d)
where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardise the objectives
or the
proper functioning of the criminal justice system, including the bail
system;
(e)
where in exceptional circumstances there is the likelihood that the
release of the accused will disturb the public order
or undermine the
public peace or security; or [sic]"
[7]
Implicit in the provisions of
s60
(4) is the fact that the
establishment of at least one of the grounds in para's (a) through to
(e) justifies a conclusion that
the interests of justice do not
permit the accused person's release from custody. The Learned
Magistrate dealt with each ground
referred to in para's (a) through
to (e) individually, and in each case made a finding. In light of the
view I take of this matter
I do not consider it necessary to
deal with all the grounds referred to in
s60
(4). The question that
requires determination is whether the Learned Magistrate was correct
in concluding that the ground referred
to in
s60
(4)(d) of the Act,
namely, a likelihood that the accused if he were released on bail
would undermine or jeopardise the objectives
or the proper
functioning of the criminal justice system, including the bail
system, was established. Before arriving at that conclusion
the
Learned Magistrate observed that the appellant had had previous
brushes with the law in the following respects. In 2010 he
was
charged with theft. The criminal proceedings were nevertheless
diverted to a NICRO program. I pause to point out that a diversion
occurs in instances where an accused person who has admitted guilt,
is afforded the opportunity to maintain his/her clean criminal
record.
[8]
In February 2016 the appellant was charged with offences similar to
the offences charged, resulting from the Fees Must Fall
campaign. He
was due to appear in court on the 1
st
November 2016. In
respect of the February 2016 charges he was released on warning and
the court imposed warning conditions which
Ideal with shortly
hereunder. The appellant also has a pending
charge of trespassing
alleged to have
been committed on the 11
th
September 2016 in
respect of which he was issued with a warning notice informing
him of a charge preferred against
him and the date on which he is to
appear in court being the 1
st
November 2016. After having
dealt with the appellant's previous brushes with the law, including
an allegation relating to a charge
emanating from the appellant's
participation in a protest at Mangosuthu Technikon which resulted in
his expulsion during the year
2011, the Learned Magistrate then
concluded:
"The
applicant has no respect for the law, and to release the applicant on
bail under these circumstances would, to my mind,
not be in the
interests of justice. It is likely to seriously undermine the
criminal justice system, including the bail system
itself. I have no
doubt that it would seriously undermine and erode the confidence of
the right thin king members of
the
society and our criminal justice system if
the applicant were to be released
on bail."
[9]
860 (8) of the Act provides:
"In
considering whether the ground in subsection (4)(d) has been
established, the court may, where applicable, take into account
the
following factors, namely -
(a)
...
(b)
...
(c)
the previous failure on the part of the accused to comply with bail
conditions or any indication that he or she will not comply
with any
conditions: or
(d)
any other factors which in the opinion of the court should be taken
into account."
When
the applicant was released on warning in respect of offences
allegedly committed in February of 2016, the court ceased with
that
matter imposed warning conditions which were paraphrased in the
following terms:
"Not
allowed to gather (unlawfully)
Refrain
from intimidating: inciting any person to participate in any
unlawful gathering
Not
to intimidate any member of staff or Security at the Uni (sic)
Not
(sic) obstruct any Police or Security personnel in the performance
of their duties.''
[10] Mr.
Ngcukaitobi, the appellant's legal representative, submitted that it
was procedurally irregular for the Learned Magistrate
to conclude
that the appellant had breached the warning conditions without having
held an inquiry in terms of
s66
of the Act. Firstly, the appellant
was not out on bail in the February 2016 matter. He had been released
on warning in terms of
s72
(1) (a) of the Act.
S66
deals with an
inquiry into an accused person's failure to adhere to bail
conditions. An inquiry into an accused person's failure
to adhere to
conditions imposed in accordance with the provisions of
s72
(1) (a)
of the Act is dealt with in terms of
s72
(4) read with 72 (2) (a) of
the Act. Secondly, the Learned Magistrate was not dealing with an
inquiry into the appellant's failure
to adhere to bail conditions.
She was dealing with a bail application and all that she had to
establish was whether it was likely
in light of the appellant's prior
conduct that he (the appellant) would, if allowed on bail, breach the
bail conditions. There
therefore was no obligation on the Learned
Magistrate to deal with an inquiry into the appellant's failure to
adhere either to
bail or warning conditions.
[11]
Mr. Ngcukaitobi further submitted that before concluding that the
appellant breached warning conditions, the Learned Magistrate
ought
to have made a finding on whether or not the gathering the appellant
participated in was unlawful. He referred the court
to the unreported
judgment of S
v Bophela
decided by the full bench of the
Eastern Cape division on the 1ih November 2016 which he (Mr.
Ngcukaitobi) did not make available
to the court. It is worth
mentioning that all attempts made by a researcher of this court to
locate that decision were unsuccessful.
I therefore do not consider
it necessary to deal with that judgment. I do not agree with Mr.
Ngcukaitobi's submission relating
to substantive irregularity. A
court hearing a bail application is not a trial court. Bail
proceedings proceed on the basis of
allegations. Even an accused
person is arrested on the basis of allegations. In my view it
suffices if allegations presented before
the court hearing the bail
application are such that the court is placed in a position where it
is able to conclude, based on the
said allegations, that a
prima
facie
case has been established. If the Learned Magistrate were
to decide on the unlawfulness or otherwise of the gathering the
appellant
was alleged to have participated in, she would have had to
hear the evidence of witnesses regarding the alleged demonstration,
including the appellant's, if necessary. That is the duty of the
trial court, not a court hearing a bail application. It was W/O
De
Beer's evidence, which it must be said was not disputed at the bail
hearing, that the gathering the appellant participated in
was
unlawful.
[12]
I now proceed to deal with warning conditions. The appellant is
facing charges
inter alia,
of convening or attending an
illegal gathering or demonstration; incitement to commit public
violence; public violence and assault.
It is not disputed that the
appellant participated in the Fees Must Fall campaign from which
allegations in the charges leveled
against him flow. In a
supplementary affidavit dated the 1oth October 2016, the appellant
when dealing with the contents of the
video footage concedes having
made utterances which he describes as
'strong views expressed in
the heat of the moment'
. He proceeds to state that he no
longer holds the views expressed in the video footage and thereafter
makes the following comment:
"In
hindsight I erred in expressing such strong views. I would like to
state that l have never acted in accordance with those
views".
In
the affidavit presented to court in support of bail application on
new facts the applicant states:
"I
have had a chance to reflect on my actions and I strongly believe
that violence is not the solution to address one's concerns
and
grievances".
The
above facts are in my view sufficient to conclude that the appellant
participated in an unlawful gathering in direct breach
of the warning
conditions. Mr. Ngcukaitobi submitted that the words "moer them"
which were possibly uttered by "someone"
in the crowd,
directed at the police cannot be attributed to the appellant. He
further submitted that there is no evidence that
the appellant threw
stones at the police. It is important to note that the appellant
conceded in his affidavits having uttered
"certain words"
and also having participated in a violent protest. I am therefore
satisfied that the Learned Magistrate
was correct in concluding that
the appellant breached the warning conditions imposed in the February
matter.
[13]
Mr. Ngcukaitobi submitted that the Learned Magistrate was wrong in
concluding that the appellant failed in establishing new
facts that
warrant his release from custody. That submission is partially
correct. In her first judgment the Learned Magistrate
observed that
the investigation was not complete and thus concluded that a
likelihood existed that the appellant would interfere
with state
witnesses. It was common course at a subsequent bail application
brought on new facts that the investigation was complete.
That fact
was new and in my view the Learned Magistrate erred in concluding
that it was not. The question though is whether that
new fact has any
bearing on the question whether the interests of justice demand that
the appellant be released from custody. The
one damning factor
staring at the appellant's face is breach of the warning conditions
imposed by the court in the February matter.
A flagrant disregard of
a court order borders on contempt and is sanctionable. If it is
condoned, law abiding citizens are likely
to lose confidence in our
justice system. If the appellant only participated in the
demonstration merely by his presence, that
would have been a
different story altogether. Instead, he played a very vital role. He
was elevated above the crowds by his supporters,
making utterances
which by his own admission, triggered violent behavior amongst the
crowds, including hurling stones at the police;
in blatant disregard
of a direct order barring him from participating in an unlawful
gathering. The manner in which the appellant
conducted himself begs
the question "if the appellant breached the warning conditions
imposed by the court, what would prevent
him from breaching the bail
conditions?". The answer to that question should in my view be:
"nothing".
[14]
It is worthy to be noted that the appellant did not deal with an
allegation that he breached the warning conditions, at all,
in the
affidavit presented at the initial bail application. He only dealt
with it at the bail proceedings on new facts and at best,
merely gave
an undertaking that he would not breach bail conditions. He further
requested the court to take into account the fact
that he has never
breached bail conditions before. He then cleared the issue frowned
upon by the Learned Magistrate relating to
his failure to attend
court in the February matter, stating that it had been settled and
further, that the warrant of arrest authorized
in respect of that
matter has since been cancelled. That inquiry related to the
appellant's failure to attend court in February
matter, not the
breach of warning conditions imposed by the court.
[15]
I took note of Mr. Ngcukaitobi's concern that of all the students who
were arrested following on their participation in the
Fees Must Fall
campaigns, the appellant is the only student who remains in custody.
Unfortunately I am not privy to the circumstances
that prevailed in
bail proceedings related to other students who were involved in the
Fees Must Fall campaigns. I am therefore
unable to comment on the
circumstances leading to their release from custody.
[16]
Mr. Ngcukaitobi requested the court to comment on the Learned
Magistrate's conduct during the bail proceedings. Ido not think
it
would be appropriate of me to do so given the fact that the Learned
Magistrate was not afforded the opportunity to respond to
the issues
raised by Mr. Ngcukaitobi.
[17]
To conclude I am not persuaded that the Learned Magistrate was wrong
in denying the appellant bail and for that reason I make
the
following order.
ORDER.
1.
The appeal is dismissed.
____________________
CHILI.
J
Appearances
Counsel
for the Appellant: Adv. T. Ngcukaitobi and Adv. M.N. Mothapo
Instructed
by: Farrell INC. Attorneys, 271 Problem Mkhize Road
Durban,
4001
P O Box
78045
Avondale
Road, 4001
Email:
dunstan@farrell.co.za
Tel: 031
312 4242
Fax: 086
615 9556
Ref: D
Farrell/EC01.1
Counsel
for the Respondent: Adv. K. Singh
Director
of Public Prosecution
Southern
Life Building
88 Joe
Slovo Street
Durban
4001
Ref:
State vs Bonginkosi Gift Khanyile
Case
number: 23/15569/16
Date of
hearing: 20 December 2016
Date of
judgement: 22 December 2016