About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 2
|
|
Khalaki and Another v S (A177/14) [2015] ZAFSHC 2 (22 January 2015)
IN THE HIGH COURT,
BLOEMFONTEIN
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No.: A177/14
DATE: 22 JANAURY 2015
In the appeal between:
PHALLANG MOSES
KHALAKI
.......................................
First
Appellant
QUEWIN FRANCOIS
COETZEE
..................................
Second
Appellant
And
THE
STATE
................................................................................
Respondent
CORAM: RAMPAI, AJP et TSATI, AJ
JUDGMENT: RAMPAI, AJP
HEARD ON: 1 DECEMBER 2014
DELIVERED ON: 22 JANUARY 2015
[1] These were appeal proceedings. The
appellants were convicted and sentenced by the district court. They
were aggrieved. They
came to us by way of an appeal with the leave of
the trial court. They were granted leave to appeal against the
conviction and
sentence. The respondent opposed the appeal.
[2] The first and second appellants
were charged together with another person, accused 2. Their
prosecution stemmed from an incident
which took place in Bloemfontein
on 23 March 2013. On that day the second appellant, Mr Quenwin
Francois Coetzee, was released
from Grootvlei Correctional Centre.
[3] Following the aforesaid incident
the first appellant, Mr Phallang Moses Khalaki, and accused 2, Ms
Venisha Catleen-Anne McGlue,
were arrested on 26 March 2013 and 28
March 2013 respectively. The second appellant was subsequently
re-arrested on 18 April 2013.
[4] The incident gave rise to a total
of 4 charges; 3 against accused one, 1 against accused two and 1
against accused three. Only
one of the four charges remained relevant
for the purpose of these proceedings. That one relevant charge was
charge number 4. It
concerned the second appellant only. The
prosecution alleged that Mr Q.F Coetzee, accused three, unlawfully
escaped from custody
at Grootvlei Correctional Centre in Bloemfontein
on 23 March 2013 contravention of sec 117(a) Correctional Services
Act 111/1998
read with section 1 thereof.
[5] Before I proceed any further, I
need to indicate, firstly that accused two, was discharged in terms
of sec 174 Criminal Procedure
Act 51/77. Secondly, I pause to point
out that there was no appearance by or on behalf of the first
appellant. Since he did not
appear I shall say no more about him and
the first three charges in respect of which he was convicted. The
focus of these appeal
proceedings, therefore, revolved around the
second appellant only.
[6] The second appellant was tried in
the Bloemfontein District Court. On the 28 January 2014 he pleaded
not guilty to the charge
that he escaped from custody. This plea
notwithstanding, he was found guilty on 1 April 2014. On the same
day, a sentence of 3
years imprisonment was imposed on him. He
successfully applied for leave to appeal on the same day.
[7] As regards the merits, Mr Nel,
counsel for the second appellant, conceded that it was proven that
the second appellant gave
instructions to his attorney to bail him
out on the strength of new facts, but he contended that it was not
proven that the second
appellant was aware of the illegality of his
release. Accordingly, counsel submitted that the second appellant
lacked the requisite
mens rea to commit the crime he was accused and
convicted of.
[8] However, Ms Moroka, counsel for the
respondent, differed. She supported the conviction of the second
appellant. Counsel contended
that it was proven that the second
appellant was fully aware that there was no new bail application
whatsoever launched on the
22 March 2013 for his release from custody
and that he was fully aware that he was not entitled to be released
as he was on Saturday
23 March 2013. Therefore, counsel submitted
that the second appellant did not lack mens rea, as he contented, to
break the law.
[9] The version of the state was
narrated by Mr Mboliswe Patrick Seliwa, district court control
prosecutor, Bloemfontein;
Ms Charmaine Coetzee, the second
appellant’s sister; Ms Venisha Catleen Anne McGlue, the second
appellant’s girlfriend;
Captain Charles Johannes Jacobs,
supervisor of court orderlies, Bloemfontein Magistrate Court; Ms
Phiwo Desirè Vuko, clerk
of the court, Bloemfontein Magistrate
Court; warrant officer Eben van Zyl, member of the Hawks and police
investigation team; Ms
Alida Maria Obus, chief executive officer The
Law Society, Free State Province; warrant officer Linda Steyn, member
of the Hawks
and the investigating officer.
[10] The evidence showed that the
second appellant was arrested and detained on a murder charge. He
unsuccessfully applied in the
Bloemfontein Magistrate Court to be
released on bail. He took the matter up on appeal to the Free State
High Court. However, his
appeal was also unsuccessful. The case was
later transferred to the Free State High Court for trial. He did not
give up. He then
instructed the first appellant to have him released
on bail. The first appellant then requisitioned the second appellant
to appear
in the Bloemfontein Magistrate Court for that purpose.
Those arrangements were made with the control prosecutor Mr Seliwa.
[11] On Friday 22 March 2013 the second
appellant was booked out of Grootvlei Correctional Centre and taken
to Bloemfontein Magistrate
Court. There was no such case on the roll
of court G. As a result the second appellant never appeared in court
on that day. Notwithstanding
the fact that no formal bail application
was made and no bail fixed for his release, at the end of the day the
second appellant
returned to Grootvlei Correction Centre with a
purported warrant of liberation which indicated that he could be
released on R4000
bail.
[12] The next day, Saturday 23 March
2013, his sister, Ms Charmaine Coetzee, travelled from Welkom to
Bloemfontein and paid the
R4000 to Grootvlei Correctional Centre. The
second appellant was then released from custody on the strength of a
fraudulent warrant
of liberation which he had caused to be presented
to Grootvlei Correctional Centre, the previous day. He walked away
with his sister.
She later gave him R650 before she returned to
Welkom. The understanding was that he would use the money to buy a
bus ticket to
Plettenberg Bay. But he did not.
[13] Instead the second appellant went
to Arthur Nathan Swimming Pool. From there he called Ms Venisha
Catleen-Anne McGlue also
known as “Nisa”. He asked her to
meet his sister there. She drove over to meet the second appellant’s
sister,
Ms Charmaine Coetzee. On her arrival there, Ms Charmaine
Coetzee was nowhere to be seen. Twice she heard someone calling her
name
out but she could not see who was doing so. Out of the blue the
second appellant emerged. He was so disguised that she could not
instantly recognise him as he was approaching her car. All she could
see was an unfamiliar man wearing a cap in such a manner that
his
face was concealed. She took him home at Fauna in Bloemfontein where
he slept on Saturday 23 March 2013.
[14] On Sunday 24 March 2013 the second
appellant declined to go to church with his fiancé as they had
seemingly agreed.
His excuse was that he did not feel comfortable to
face people. When everyone went to church he remained behind alone.
He was not
locked up but he chose to avoid the public.
[15] A message posted in social media
Twitter and Facebook was brought to the second appellant’s
attention after the church
service. Ms Venisha Catleen-Anne McGlue
read the message out to him. The second appellant was shaken. He
panicked. He became very
restless. Ms McGlue asked him to calm down
and suggested they go to the nearest police station to prove that he
was lawfully released
on bail in order to refute the perception that
he had escaped from lawful detention. The second appellant became so
extremely restless,
panicky and anxious that he, without saying
goodbye to his fiancé, took the fiancé cellular handset
and disappeared.
[16] At 23:30 on Sunday 24 March 2013
the second appellant called his fiancé. He used her cellular
phone. She told him that
the police had been to her parental home;
that they were looking for him; that they searched the house to find
him and that they
questioned her concerning his whereabouts. He asked
her not to worry because he was fine. He told her he was in Welkom to
fetch
the bail slip from Charmaine and that from there he would
travel to Plettenberg Bay by bus. Having heard that the police were
hot
on his heels, the second appellant never called his fiancé
again.
[17] Later that Sunday the second
appellant resurfaced in Welkom. He asked his sister Ms Charmaine
Coetzee for the bail receipt
in order to disprove the allegation on
social media that he had escaped from the correctional detention
centre. She refused. He
became very angry. He again vanished in
Welkom as he did in Bloemfontein.
[18] The second appellant was
eventually arrested by warrant officer Eben van Zyl in Johannesburg,
on 18 April 2013. He was found
in a shack in the back courtyard of a
certain residential property.
[19] The crucial question in the appeal
before us was whether or not the second appellant knew that he was
not lawfully granted
bail. On behalf of the second appellant, Mr Nel
submitted that the answer to that question had to be in the
affirmative. He accordingly
urged us to uphold the appeal and to
reverse the verdict.
On behalf of the respondent Ms Moroka
differed. She submitted that the question had to be negatively
answered. The submission she
made was premised on the contention that
the conduct of the second appellant was indicative of the second
appellant’s subjective
knowledge that he was not lawfully
entitled to be released from custody.
[20] Prior to his release, the second
appellant knew:
• that he was facing a charge of
murder;
• that he gave oral evidence in
support of his bail application in the magistrate court;
• that his bail application was
refused;
• that he took the regional
magistrate’s refusal on appeal;
• that the high court dismissed
his bail appeal;
• that his case had already been
transferred to the Free State High Court;
• that he had already appeared in
the high court and that his case had been remanded for trial.
• that he was the only person who
could tell the court about the new facts or changed circumstances;
and
• that he testified in no court
about the alleged new facts or changed circumstances.
[21] Given such prior knowledge, it
should have struck the second appellant as odd that he was taken back
to the district magistrate’s
court instead of the high court on
22 March 2013. Worse still he did not even actually appear in that
district court to give evidence,
as before, about the changed
circumstances which dictated that, unlike on the previous occasion,
his release from custody would
be in the interest of justice. It
appeared as if his release from custody was informally considered in
absentia in haste and apparently
in camera. Such radical departures
from the standard procedure known to the second appellant would
ordinarily have made an innocently
ignorant person in those
circumstances very sceptically about the legality of his release. The
bail amount was predetermined. The
high court was mysteriously
circumvented. Bail was granted by a secret magistrate in a
clandestine tribunal.
[22] Subsequent to his release, the
second appellant’s guilty knowledge could be deduced from the
following facts:
• he told his sister that he
wanted to get out of Bloemfontein on the same day on which he was
released;
• he received bus fare money from
her to travel to Plettenberg Bay where his parents lived but he never
did;
• he was so disguised that his
fiancé could not readily recognise him when they met at the
recreational park in the
vicinity of Arthur Nathan swimming pool;
• he avoided accompanying his
fiancé to church;
• he became extremely anxious and
restless when his fiancé read the postings on social media
which claimed that he had
escaped from custody;
• he started peeping through the
window probably whenever he heard a sound of passing motor vehicles
or strange noises outside
before he vanished from Bloemfontein.
• he unceremoniously disappeared
from Bloemfontein instead of going to the local police station to
dispel allegations in the
social media about his alleged escape;
• he resurfaced in Welkom with an
excruciating headache and again vanished as quickly as he had
appeared;
• he called his fiancé,
told her he was taking a bus to Plettenberg Bay but he took a bus and
went the other way instead;
• he heard from his fiancé
that the police were looking for him yet he avoided the police and
broke further contact
with her;
• he was eventually arrested in
Johannesburg in somewhat suspicious circumstances;
[23] There can be no reasonably doubt,
on the mind of any objective person, that the entire conduct of the
second appellant was
certainly not consistent with the behaviour of
an innocent person who knew that he had done nothing wrong and who
knew that he
had nothing to fear. On the contrary, his behaviour was
akin to that of a fugitive from justice. “The guilty are
afraid.”
That saying appropriately applied to the second
appellant. Every single move he made, every line of action he took
and every word
he said symbolised an ever increasing web of
indications that he knew very well that he was not lawfully released.
[24] During the course of the judgment,
the trial magistrate, Mr van der Merwe commented:
“His conduct towards his release
is also indicative of the fact that he was aware that he was not
lawfully released; he never
contacted accused 1, who had been
responsible for arranging his bail. His conduct towards his fiancé
and his sister displayed
a state of panic. His version that he had
went to Johannesburg to go and sort out his pension also seems
improbable, he conceded
that the pension office was in Pretoria;
however, he stayed in Johannesburg in the backyard of a person who is
a complete stranger
to him.”
[25] The trial court came to the
following conclusion:
“The versions of accused 1 and 3
seem highly improbable in the light of the evidence as a whole. The
only reasonable inference
that can be drawn from the evidence as a
whole is that both were instrumental and the planning and execution
of the escape of accused
3, the escape could not have been executed
without the cooperation of both accused.”
[26] If we accept, and I believe we
have to, that the second appellant collaboratively conspired with the
first appellant in order
to secure and facilitate his release from
lawful detention by fraudulently false representations, then there
can be no reasonable
doubt that, all along, the second appellant had
the subjective knowledge that his release from custody was unlawfully
orchestrated
and that he was not supposed to be released. His
subjective knowledge notwithstanding, he walked out of lawful
custody. On the
facts, I am not persuaded that the trial magistrate
committed any material misdirection to warrant appellate
interference. The
entire network of the second appellant’s
actions demonstrated beyond reasonable doubt that he had the
requisite criminal
intent to escape from lawful custody. I would,
therefore, dismiss the appeal and confirm the conviction of the
second appellant.
[27] As regards sentence, the issue was
whether or not the trial court materially erred in not directing the
sentence of 3 years
to run concurrently with the sentence of 20 years
imprisonment imposed on the appellant in respect of the charge of
murder.
[28] Section 48(2) Correctional
Services Act 8/1959 provided that where a person had been convicted
of the offence of escaping from
lawful custody, a sentence imposed
would commence after the expiry of any sentence the offender was
already serving at the time.
The statute has since been repealed.
[29] Currently Section 117 Correctional
Services Act 111/1998 which deals with the offence of escaping from
custody, does not contain
a provision similar to sec 48(2) of the
repealed statute.
[30] The second appellant was sentenced
on 1 April 2014. On 27 May 2014 the trial magistrate filed a
statement in terms of Rule
67(5) of the Magistrate Court Act. He
commented as follows on the sentence he imposed on the second
appellant:
“With regard to sentence I also
refer to my judgment with regard to sentence delivered on 01/04/2014.
I have to concede however
that I may have misdirected myself with
regard to the question whether a sentence of imprisonment imposed for
escaping from custody
may be served concurrently with any other term
of imprisonment that such an accused may be serving. In coming to the
conclusion
that it was not possible I had mistakently referred to my
notes on the repealed Correctional Services Act, No 8 of 1959 and
more
specifically Section 48(2) which provided that “Any
sentence or imprisonment imposed ... shall commence after the expiry
of any sentence the prisoner is undergoing …” The
current
Correctional Services Act, No 111 of 1998
does not contain a
similar provision. It may therefore be possible for the current
sentence to run concurrently with the sentence
the 2nd appellant in
(sic) currently serving.
Notwithstanding the misdirection
referred to above, I am of the view that the imposed sentence of
three years imprisonment is not
shockingly severe in the light of the
circumstances.”
[31] To the extent that the trial
magistrate reckoned that the repealed
sec 48(2)
was still operative
he erred. It is clear from his subsequently statement that but for
the error he would have directed otherwise.
The error adversely
affected the second appellant. The practical impact thereof is that
the second appellant will serve 3 more
years after he had served the
twenty year term. In my view the trial court materially erred because
it misapplied the law.
Sec 111
is permissive and not prohibitive. It
is clear that in an appropriate case, a trial court may exercise its
discretion either to
direct that the new sentence and the old
sentence run concurrently or consecutively. In this instance the
trial magistrate erroneously
believed that the concurrent option was
prohibited whereas it was not.
[32] In my view the misdirection
justified appellate interference. The second appellant was already
serving a twenty year term of
imprisonment. In itself such a sentence
was, by all accounts, very retributive. Therefore, the interest of
society and the administration
of justice would not have been
undermined if the sentence relative to escaping was directed to run
concurrently with the sentence
relative to murder. I am inclined to
interfere in that manner.
[33] Accordingly I make the following
order:
33.1 The appeal fails as regards
conviction;
33.2 The conviction is confirmed;
33.3 The appeal succeeds as regards
sentence;
33.4 The sentence of 3 years
imprisonment is confirmed but it is directed that it run concurrently
with the sentence of twenty years
imprisonment previously imposed in
connection with the charge of murder.
33.5 The aforesaid direction must be
deemed to have been made on 1 April 2014.
M.H. RAMPAI, AJP
I concur
E.K. TSATSI, AJ
On behalf of the appellant: Advocate
P.W Nel
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the respondent:
Advocate MMM Moroka
Instructed by: Director of Public
Prosecutions
BLOEMFONTEIN