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[2015] ZAGPPHC 618
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Snyders v S (A455/2015) [2015] ZAGPPHC 618 (21 August 2015)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A455/2015
In
the matter between:
ANTONIO
JACOBIE
SNYDERS
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
MSIMEKI
J:
INTRODUCTION
[1]
On 26 March 2015 the appellant brought an application for bail in the
Vereeniging magistrate court. The application served before
magistrate L Ferreira who refused it. The appellant then appealed the
decision and the appeal now serves before me.
[2]
The appellant, in the magistrate court, was represented by Mr. Van
Wyk while the State was represented by Mr. Kruger. The appellant,
on
appeal, was represented by Adv E Kilian SC (Ms. Kilian) while the
respondent was represented by Adv H Creighton (Ms. Creighton).
[3]
Mr. A J Snyders, the appellant, testified when the application was
brought. No witness was called to testify on his behalf.
Constable
Elsie Molina Moletsane was called as a witness for the state.
[4]
The parties agreed, and this was common cause, that the charges that
the appellant faces are referred to in Schedule 6 of the
Criminal
Procedure Act 51 of 1977
. This, because the appellant has previously
been convicted of an offence referred to in schedule 5 and the
offence that he now
faces is a schedule 5 offence.
[5]
The magistrate refused the bail application on the basis that:
1.
The appellant would again commit an offence listed in schedule 1 of
the Criminal
Procedure Act 51 of 1977 (the CPA)
2.
The court, by releasing the appellant on bail, would be placing his
safety in
danger.
3.
There was nothing abnormal in the appellant’s evidence which
justified
his release on bail. The appellant’s evidence,
according to the magistrate, contained only the usual circumstances
which,
in his view, would not assist the appellant to discharge the
onus which rested on the appellant.
[6]
Ms. Creighton submitted that the court a quo had been correct when it
refused the bail application while Ms. Kilian held a view
contrary to
that.
[7]
It is noteworthy that the appellant has a previous conviction of
murder which is a schedule 5 offence. He now faces two charges
one of
murder and the second of attempted murder. This has now resulted in
the appellant having to face an offence which is listed
in schedule 6
of the CPA.
[8]
Bail applications of accused persons in court are regulated by
section 60 of the CPA.
[9]
Section 60(1) (a) provides that:
“
(1)(a)
An accused who is in custody in respect of an offence shall, subject
to the provisions of section 50 (6), be entitled to
be released on
bail at any stage preceding his or her conviction in respect of such
offence, if the court is satisfied that the
interests of justice so
permit”.
In
other words every accused is entitled to be released on bail as soon
as the court is satisfied that, it indeed, will be in the
interests
of justice that such accused be so released.
[10]
Section 60 (11) (a) provides:
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to -
(a)
In
schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the
law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or
her release”.
Section
60 (11) (a) places the burden or the on an accused onus to satisfy
the court by way of evidence, that there are, indeed,
exceptional
circumstances in his case which, “in the interests of justice
permit his or her release”. This appears
to be a heavier burden
than the one which is prescribed by section 60 (11) (b).
THE
ISSUE
[11]
The issue to be determined is whether the appellant has discharged
the burden which rests on him in terms of section 60 (11)
(a) of the
CPA for him to be admitted to bail.
[12]
Having said this, the question which immediately springs to mind is
as to what these “exceptional circumstances”
are. In
S
v Bruintjies
2003 (2) SACR 575
(SCA) at 577f Shongwe AJA
said:
“
what
is required is that the court consider all relevant factors and
determine whether individually or cumulatively they warrant
a finding
that circumstances ofan exceptional nature exist which justify his or
her release. What is exceptional cannot be defined
in isolation from
the relevant facts, save to say that the legislature clearly had in
mind circumstances which remove the applicant
from the ordinary run
and which serve at least to mitigate the serious limitation of
freedom which the legislature has attached
to the commission of a
schedule 6 offence”.
At
577I, the court said:
If,
upon an overall assessment, the court is satisfied that circumstances
sufficiently out of the ordinary to be deemed exceptional
have been
established by the appellant and which, consistent with the interests
of justice, warrant his release, the appellant
must be granted bail”.
Legodi
J in S v D V & Others
2012 (2) SACR 492
(GNP) at [8]
found that cumulatively “ the fact that the state was subject
to some doubt, the low risk pertaining to fight, the absence
of
likelihood of interference with state witness and the low risk of
re-offending” constituted “exceptional circumstances”.
In
S v Rudolph
2010 (1) SACR 262
(SCA) at 266 g-h the
court
again dealt with what exceptional circumstance are and reiterated
that the applicant in a schedule 6 offence-bail application
must, on
a balance of probability, demonstrate that “exceptional
circumstances” in his or her case, indeed, do exist
and that
they “in the interests of justice permit his release”.
This, according to the court, involves the balancing”
between
the liberty interests of the accused and the interests of which”,
society in denying the accused bail, will be resolved
in favour of
the denial of bail, unless “exceptional circumstance” are
shown by the accused to exist”.
The
court at 266 g-h further said that:
“
Exceptional
circumstances do not mean that ‘they must be circumstances
above and beyond, and generally different from those
enumerated’
in ss (60) (4)-(9). In fact, ordinary circumstances present to an
exceptional degree, may lead to a finding that
release on bail is
justified”.
[13]
Section 60 (4) of the CPA provides that:
“
(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 1 offence; or
(my
emphasis)
(b)
Where
there is the 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 circumstance there is the likelihood that the release
of the accused will disturb the public order or undermine
the public
peace or security; or [sic]
[14]
Having regard to the issue to be determined one has to determine
whether the magistrate, indeed, erred in not having granted
the
appellant the bail that he needed.
[15]
The appellant testified that he is a South African citizen with
identity number [……….]. He was born on
[…….].
He has a passport which he is prepared to surrender as part of the
bail condition. He has no ties overseas
as he has no family member or
property there. He was renting a property which is [......] in
Vereeniging when he was arrested.
He testified that he could also
live with his brother at [......] Ormonde in Johannesburg should such
a need arise. He is married
and has two [......] aged […] and
[…] years respectively with his current wife. He also has
another [......] aged
[…] who was born prior to the marriage.
The state did not dispute this evidence, instead, it conceded that
the appellant
has a fixed address which had been verified.
[16]
Constable Moletsana did not dispute the fact that the appellant, if
released on bail, would stand his trial and that he is
not a flight
risk.
[17]
The appellant testified that he owns a registered company called
Virtuous Tale (Pty) Ltd which removes rubbish from Public
Works
institutions such as courts, Police stations and hospitals. This
evidence was not controverted by the state.
[18]
Constable Moletsane testified that she had taken statements from some
of the eye witnesses and that she was still to take further
statements from the remaining eye witnesses. She testified that she
is the investigation officer in this case. The statements she
had in
the docket revealed that there was a bash at the Rust de Vaal
Community hall where the deceased and his friends were playing
music
in his motor vehicle. The motor vehicle was stationary inside the
yard of the community hall. The appellant arrived in his
motor
vehicle and parked next to theirs. The appellant played loud music
with the boot of his motor vehicle open. The appellant
was approached
and requested to lower the sound of his music. This did not please
the appellant who closed the boot of his motor
vehicle and left,
after he had promised to come back. He came back after one and half
hours accompanied by his son who hit the
deceased with the bottle
which he had in his hand. The deceased tried to retaliate but failed
because the appellant pulled out
a firearm from his waist and shot
him once therewith. The son is accused number 2 in the case. The
complainant in the attempted
murder charge, on seeing this, ran away.
The deceased followed the complainant and shot him twice with the
very firearm. The complainant
needs to be fed as he cannot eat on his
own and is unable to use his hands.
[19]
The appellant, in his evidence, indicated that he would plead not
guilty to the charges on the basis that he had been defending
himself. His further evidence was that he needed to be released on
bail because he supported his family and his sick father. He
also
wanted to be released on bail because he needed to run his business
which would go under unless he himself tool charge of
the running of
the business. The business, according to him, has employed five
people who would suffer if he was not released on
bail.
[20]
The appellant testified that he has a previous conviction of murder
which is very relevant in so far as the present charges
are
concerned. He testified that he was convicted in 2009. The appellant
was cross-examined on other previous convictions which
the State
contended he has. His answers regarding thereto were not that
satisfactory. Exhibit “X1” was produced when
the matter
was argued. Save that the previous conviction of murder does not
appear thereon the other previous convictions seem
to be in line with
the previous convictions appearing on exhibit “X1”. The
appellant indeed, has previous convictions.
[21]
The appellant testified that he also needed to be released on bail
because he was responsible for transporting his [......]
to school
where they are involved in sport. His further evidence was that, like
in the other murder case, he, in this case, handed
himself in.
[22]
A petition which is Exhibit “A”, appearing on page 66 of
the court record, has 311 signatures. The petition reads:
“
WE
THE COMMUNITY OF RUST-TER VAAL ARE DEEPLY CONCERNED OF THE HEINOUS
CRIME THAT WAS COMMITTED BY MR ANTONIO JACOBS SNYDERS (ALIAS
JAY-BY).
WE THEREFORE URGE THAT THE LATTER’S CONSTITUTIONAL RIGHT MUST
BE CURTAILED”.
[23]
The appellant, under cross-examination, conceded that the community
would not accept him with open arms. He further conceded
that the
murder that he had been involved in previously had something to do
with the shooting with a firearm. The 357 revolver
that had been used
was his. He was then convicted and declared unfit to possess a
firearm. He conceded that there was, indeed,
an atmosphere of enmity
between him and the community. Asked if he would be safe once
released on bail he answered that he would
be safe. He, however, when
the same question was put to him indicating that he would not be
safe, answered that he had no comment.
Told that he would also not be
safe if he were to go and live with his brother, he answered that he
would not comment. He testified
that he had forgotten to mention the
fact that he had other previous convictions. This in, indeed, was
very strange. This did not
satisfy the court a quo. Informed
that someone could fetch medicine for his sick father if he was not
released on bail, he
answered that he could not comment. He knows the
deceased and the complainant in the murder and the attempted murder
charges
[24]
It was submitted, on behalf of the respondent, that the appellant was
a violent person. This was based on the previous murder
case where a
firearm had been used. The further submission, on behalf of the
respondent, was that a firearm was again used in the
current case
where one person is dead and the other critically injured and cannot
help himself. The presence of previous convictions
listed in schedule
1 to the CPA in the list of his previous convictions, according to
the State, showed and shows that the appellant
does not deserve to be
released on bail.
[25]
It was also submitted on behalf of the respondent that the fact that
the community was up in arms in the sense that it found
it necessary
to voice its opinion regarding the conduct of the appellant as well
as his concessions relating to his safety meant
that it would not be
wise to release the appellant on bail. Indeed, the appellant conceded
that the community would not accept
him back with open arms and that
there existed some enmity between him and the community.
[26]
The court, in the final analysis, has to determine if the provisions
of Section 60 (4) (a) – (e) have satisfactorily
been addressed
by the appellant for him to be entitled to bail.
[27]
The court a quo found that:
1.
for the purposes of the bail application it could not find that the
offence had
not been planned. To arrive at this decision one needs to
deal with the merits of the case. For the purposes of the bail
application,
the court a quo did not have to make such a
pronouncement as that was not its function.
2.
the appellant failed to disclose the previous convictions that he has
because
he did not want to take it into his confidence and that he
did not play open cards with it. The court, as a result, drew a
negative
inference against the accused.
3.
the appellant, based on the evidence at its disposal, would stand his
trial.
4.
there was no evidence to show that his release on bail would disturb
the public
order or undermine the public peace or security
5.
There was no evidence to show that the appellant would attempt to
influence or
intimidate witnesses if he were to be released on bail.
6.
The appellant and his family would not be safe if he were released on
bail.
[28]
It was submitted, on behalf of the appellant, that his business would
close down unless he were released on bail. It was further
submitted,
on his behalf, that he would live with his brother in Johannesburg if
he were to be released on bail. This was to show
that the appellant
would be safe in Johannesburg. This, however, was controverted by the
appellant himself under cross-examination
when he said he could not
comment and that the community, according to him, would not accept
him with open hands. This demonstrates
that he too realized how
unsafe it would be if he were released on bail.
[29]
Save for pronouncing that the offence was planned nothing has been
tendered to show that the court a quo misdirected itself
or committed
an irregularity when dealing with the bail application. It has not
been shown that the court a quo’s discretion
was not exercised
reasonably or properly.
[30]
It is self-evident that the appellant has failed to show that
exceptional circumstances which, in the interests of justice,
permit
his release exist. The provisions of section 60 (4) (a) have not been
satisfied by the appellant who has previous connections
and has
conceded that all is not well between him and the community. His
release on bail, in my view, would jeopardise his safety
and that of
his family. The fact that his business will have to close down unless
he is released on bail cannot on its own be regarded
as an
“exceptional circumstance”. The fact that the applicant
in both cases handed himself in, in my view, and especially
having
regard to the facts of the case, is of no assistance to him.
[31]
Section 60 (4) of the CPA clearly provides that the interests of
justice do not permit the release from detention of an accused
where
one or more of the grounds referred to in the subsections of section
60 (4) are established. Evidence has demonstrated that
the appellant
has previous convictions which show that he has the propensity of
committing schedule 1 offences. Evidence, has also
demonstrated that
his release on bail will jeopardise his safety and that of his
family. The community is up in arms. This is borne
out by its
petition which is exhibit “A”
[32]
On the basis of what I say above, it can therefore not be said that
the appellant has shown that exceptional circumstances
exist in his
case which would show that the interests of justice permit his
release. The appeal should fail.
ORDER
[33]
I make the following order:
The
appeal is dismissed.
______________
M.W
MSIMEKI
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
COUNSEL
FOR THE APPELLANT:
ADVOCATE E KILLIAN
INSTRUCTED
BY:
COUNSEL
FOR THE RESPONDENT:
ADV H CREIGHTON
INSTRUCTED
BY:
DATE
OF
HEARING:
30/07/2015
DATE
OF JUDGMENT: