About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2015
>>
[2015] ZAKZDHC 41
|
|
Davis and Another v S (2888/2015) [2015] ZAKZDHC 41 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO. 2888/2015
MAGISTRATE’S
CASE NO. 23/13637/14
DATE:
08 MAY 2015
In
the matter between:
TEVEN
DAVIS
….................................................................................................
FIRST
APPELLANT
ANDILE
BRUCE
METH
................................................................................
SECOND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
J
U D G M E N T
STEYN
J
[1]
The appellants launched a bail application in the Regional Court
Durban on 28 August 2014, which was refused. Subsequent to
the
decision of the learned regional magistrate, they brought a second
application on new facts. On 14 November 2014 the Court
a
quo
found that the appellants had failed to show the existence of new
facts with the result that the earlier decision remained in force.
Mr
Howse, appearing on behalf of the appellants, challenged both
decisions of the magistrate in this single appeal. Ms Vahed,
appearing on behalf the respondent, opposed the appeal. When the
matter was set down and argued, I asked both counsel to address
me on
the procedural issue of whether the appellants have the right to
challenge the first refusal of bail in circumstances where
they
elected to launch a new application on new facts. Another procedural
issue also reared its head and that is that the appellants
in their
notice of appeal explicitly gave notice that they ‘note an
appeal to the Durban Division (sic) of the KwaZulu-Natal
High Court
against the decision on 14 November 2014 by the learned magistrate,
Ms V Armu, refusing to admit the appellants to bail’.
[1]
Both counsel elected to file supplementary heads and elected to make
further submissions on 4 May 2015.
[2]
Mr Howse in his supplementary heads and oral submissions on 4 May
2015, conceded that the learned magistrate was correct in
her finding
that there were no new facts before court. He also conceded that this
concession contradicts his earlier submissions
in his heads of
argument, namely that the learned magistrate was misdirected when she
had found that the evidence does not constitute
‘new facts’.
This concession accords with case law. In
S
v Petersen
[2]
Van Zyl J held:
[3]
‘
[57]
When, as in the present case, the accused relies on new facts which
have come to the fore since the first, or previous, bail
application,
the court must be satisfied,
firstly,
that such facts are indeed new and, secondly, that they are relevant
to purposes of the new bail application.
They must not constitute simply a reshuffling of old evidence or an
embroidering upon it. See
S v De
Villiers
1996 (2) SACR 122
(T) at
126e-f. The purpose of adducing new facts is not to address problems
encountered in the previous application or to fill
gaps in the
previously presented evidence.
[58]
Where evidence was available to the applicant at the time of the
previous application but, for whatever reason, was not revealed,
it
cannot be relied on in the later application as new evidence.
See
S v Le Roux en Andere
1995 (2) SACR 613
(W) at 622a-b. If the evidence is adjudged to be
new and relevant, then it must be considered in conjunction with all
the facts
placed before the court in previous applications, and not
separately. See
S v Vermaas
1996 (1) SACR 528
(T) at 531e-g;
S v
Mpofana
1998(1) SACR 40 (Tk) at
44g-45a;
S v Mohammed
1999 (2) SACR 507
(C)
[1999] 4 All SA 533)
at 511a-d.
’
(My
emphasis)
[3]
The Court in
S
v Le Roux en andere
[4]
dealt
with new facts authoratively, and I agree with the sentiments
expressed therein that new facts should be facts discovered
after the
bail application was heard and not merely an elaboration of facts
presented at the first bail application.
[5]
The Court
a
quo
cannot be faulted in its finding that the facts presented were
neither new nor discovered after the bail application was finalised
on 28 August 2014.
[4]
The background to this appeal is: The appellants were charged with a
count of murder and attempted murder. It is common cause
that the
first count falls within the ambit of section 60(11)(a) read with
Schedule 6 of the Criminal Procedure Act, No. 51 of
1977 (hereinafter
referred to as “the Act”). The appellants had to
discharge the
onus
of exceptional circumstances, which in the
interests of justice would have permitted their release on bail. On
28 August 2014 the
appellants in support of their application filed
affidavits marked exhibit “A” and “B”
respectively. The
investigating officer also filed an opposing
affidavit which was marked “C”. In essence the
appellants raised
alibi defences and first appellant in his affidavit
stated that he had handed to the police a video which according to
him shows
that he was not in the company of the second appellant at
the time of the alleged offences being committed and that the State
witnesses
must have been mistaken when they claim that it was him and
the second appellant at the scene, committing the alleged crimes.
The investigating officer in his affidavit responded to the said
video footage as follows:
‘“
This
footage has been viewed and it is very unclear. You cannot
identify the person in the footage and the clothes he is wearing.
It has been sent to the Pretoria lab to be analysed by experts.
’
[6]
Having
considered the evidence adduced, the magistrate was not satisfied
that the appellants succeeded in their
onus
and refused bail.
Two months after the first decision the appellants then launched the
second application based on the new
facts. Mr Karim,
representing the appellants in the court
a quo
stated the
following in support of the application:
‘“
In
our application on new facts there is only one salient aspect that I
want the Court to draw attention on is the strength or the
weakness
of the State case and obviously a defence that the applicants have
before court. As much as previously intimated
there are alibi
witnesses and alibi evidence that was not ventilated and expressed in
the initial application. A note on
the affidavits by both the
accused mention was made of an alibi and that was not substantiated
or expatiated and the Court never
had the benefit of the nature of
that evidence which can be for the benefit of the accused which I
verily believe. Your Worship,
that is essentially the new facts
they are bringing before Court.
’
[7]
Evidence
was heard by the Court
a quo
and on 14 November 2014 the Court found that no new facts were
tendered.
[5]
The Court most certainly considered the facts and whether it favours
the appellants’ release from custody. The court pertinently
approached the application as follows:
‘
Having
regard to all the facts of the case the Court finds that no new facts
exist, the alibi witnesses were mentioned in the initial
application,
the CCTV footage is of no value at all at this stage as no faces can
be seen. The State seems to have an extremely
strong case as well as
they have three independent witnesses.
’
[8]
[6]
I shall now consider all of the proceedings, including the procedural
issues in deciding upon the success of this appeal. Our
bail system
is undoubtedly designed to strike a balance between the interests of
the offender and those of the victim, and society
as a whole.
These interests should be balanced within a constitutional paradigm.
The present legislation
[9]
governing bail was challenged and found to be constitutional.
Accordingly I shall consider the procedural issues as they present
themselves in this matter. After 1994 the role of presiding officers
changed and each and every bail application should be decided
within
the prism of the Constitution,
[10]
coupled with the provisions of the Act. The Constitution does
not grant an offender an absolute right to personal freedom.
[11]
Liberty is qualified and circumscribed. In my view the duty of
those presiding over bail applications have become far
more onerous
since 1994 since judicial officers are now expressly enjoined by the
provisions of section 60 of the Act to not be
passive. It
cannot be said, given the facts of this appeal, that the learned
magistrate was not mindful of the said duties
or the obligations
imposed on her.
[7] Section 65 of
the Act is paramount for purposes of this appeal:
‘
(1)
(a) An accused who considers himself aggrieved by the refusal by a
lower court to admit him to bail or by the imposition by
such court
of a condition of bail, including a condition relating to the amount
of bail money and including an amendment or supplementation
of a
condition of bail, may appeal against such refusal or the imposition
of such condition to the superior court having jurisdiction
or to any
judge of that court if the court is not then sitting.
(b)
The appeal may be heard by a single judge.
(c)
A local division of the Supreme Court shall
have jurisdiction to hear an appeal under paragraph (a) if the area
of jurisdiction
of the lower court in question or any part thereof
fails within the area of jurisdiction of such local division.
(2)
An appeal shall not lie in respect of
new facts which arise or are discovered after the decision against
which the appeal is brought,
unless such new facts are first placed
before the magistrate or regional magistrate against whose decision
the appeal is brought
and such magistrate or regional magistrate
gives a decision against the accused on such new facts.
(3)
The accused shall serve a copy of the notice of appeal on the
attorney-general and on the magistrate or, as the case may be,
the
regional magistrate, and the magistrate or regional magistrate shall
forthwith furnish the reasons for his decision to the
court or judge,
as the case may be.
(4)
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
.
’
(My emphasis.)
[8]
Considering the ambit and scope of section 65, it is necessary to
analyse the approach adopted by our Courts. Van Dijkhorst
J in
S
v Vermaas
[12]
stated:
[13]
‘“
Obviously
an accused cannot be allowed to repeat the same application for bail
based on the same facts week after week. It would
be an abuse of the
proceedings. Should there be nothing new to be said the
application should not be repeated and the court
will not entertain
it. But it is a
non sequitur
to argue on that basis that where
there
is some new matter the whole application is not open for
reconsideration but only the new facts
.
I frankly cannot see how this can be done. Once the application
is entertained the court should consider all facts before
it, new and
old and on the totality come to a conclusion. It follows that I will
not myopically concentrate on the new facts alleged.
’
(My emphasis.)
I
do not agree with the entire approach adopted by Van Dijkhorst. In my
view the facts adduced at the earlier application has a
limited
purpose, i.e. to assist the Court in its comparison exercise with the
‘new evidence’ adduced.
[9]
The boundaries of section 65 of the Act have been considered and
decided in
Shefer
v Director of Public Prosecutions, Transvaal and another.
[14]
I align myself with the observation by Patel J, stating as
follows:
[15]
‘
[27]
There is no reason why proceedings in terms of s 63(1), during which
an application is made for amendment of bail conditions,
should not
be subject to common-law review. In
Pillay
v Regional Magistrate, Pretoria and Another
1976 (4) SA 290
(T) it was accepted that a Superior Court had both
common-law and statutory powers to review matters pertaining to bail.
That would
certainly include the review of amendment of bail
conditions.
[28]
When a person is lawfully arrested for the commission of a crime and
released on bail on certain conditions, the question of
his right to
review any amendment or supplementation of the bail conditions is an
aspect that is fully governed by the provisions
of s 65. There is
very little room for the Court’s common-law powers, except,
perhaps, to the extent that such powers can
be exercised within the
ambit set by the
Criminal Procedure Act.
Where
the applicant is aggrieved by the decision of the court below in
declining to amend any one or more conditions of bail, then he
is
free to appeal against that decision in terms of
s 65.
If he considers that the magistrate committed a reviewable
irregularity then he is free to approach the High Court in the manner
provided by
Rule 53
to review the lower court’s decision.
However, Stegmann J in
S v Baleka (supra
at 376F-G) warned:
“
What
the applicants were not free to do was simply to ignore the
magistrate’s decision, to treat it as if it had never been
made, and institute a new application for bail in the Supreme Court.”
[29]
Simply, in this instant case, the applicant ignored the regional
court’s decision and proceeded to initiate a new application.
Further, he has not demonstrated that the regional court committed a
reviewable irregularity. There were no grounds advanced
to
demonstrate that the magistrate took a wrong view of the matter or
misdirected himself in any way.
’
(My
emphasis.)
[10]
If the appellants had duly appealed the Court
a
quo’s
decision,
then they would have had to formulate their grounds of appeal in the
notice of appeal in terms of
section 65(3)
and to have served it in
accordance with the section on all the relevant parties. The
magistrate would then have had the opportunity
to formulate her
reasons in light of the specified grounds. It may be likely
that the magistrate would not have wished to
add anything to her
reasons given on 28 August 2014. I cannot predict. Even if that
is the case then I cannot simply ignore
the provisions of the Act.
I agree with the viewpoint of Stegmann J
[16]
in
S
v Baleka and Others
[17]
that the requirements of the section are peremptory and a court
cannot introduce a procedure different to what is required by the
Act.
[11]
This Court, in my view, should not allow applicants to launch a new
bail application on new facts to circumvent the appropriate
appeal
process of the first bail decision. Allowing the appellants
in
casu
to appeal both decisions firstly
broadens the scope of the appeal and secondly would grant the
appellants more rights than other
appellants exercising their right
to appeal a decision. In my view a bail appeal in terms of
section 65 of the Act is no
different than any ordinary appeal.
In this case the appellants attempt to utilise the latter decision of
the learned magistrate
to bolster their appeal against the first
judgment of the magistrate. Allowing the appeal in its present
form would lead
to an injustice.
[12]
By entertaining both appeals as one I would create a procedural
maze. What would be the consequence if I find that the
magistrate was wrong to have refused bail on 28 August 2014 (which I
have not considered). In my considered view there is
no basis
to entertain the appeal against both bail applications.
Appellants should have appealed against the first decision
if they
wanted to challenge it. Mr Howse submitted that limiting the
appellants to the appeal that they have given notice
to, would cause
them to be deprived of their right to a fair trial.
[18]
The submission was that barring the appellants from challenging the
first refusal would be too a restrictive interpretation
of Section
65. I disagree. Section 65 gives a limited scope to an
appellant to challenge a court’s decision on
bail. One
needs only to consider Section 65(4) of the Act to realise how
restrictive bail appeals are. I am not persuaded
that the
appellants at this stage of the appeal being heard can change course
and amend their notice to appeal. Allowing
such an amendment
would be in direct contrast to the peremptory obligations of Section
65(3). An appellant is not deprived
of a right to appeal the
decision of the Court when he/she adduces new facts. The Court
in
S
v De Villiers
[19]
reaffirmed this position in stating:
‘
Dit
is duidelik uit die lees van art 65(2) dat ‘n persoon die reg
van appel het teen die weiering van borg ten opsigte van
nuwe feite
slegs nadat die nuwe feite op aanvaarbare en strafprosesregtelike
wyse voor die landdros geplaas was.
’
[20]
[13]
This Court anxiously considered the fundamental right to liberty and
that it should not be devalued by a too narrow interpretation
of the
appellants’ right to appeal the decision of the court
a
quo
,
but equally gave consideration to the fact that the scale should not
be tipped entirely in favour of alleged offenders.
An
overemphasis of their rights would not be in accordance with the
legislation governing bail, nor with the guidelines set by
the
Constitutional Court in
S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat.
[21]
Dlamini, in my view, has set the norm for individual liberty.
[14]
The appellants
in casu
treated the learned magistrate’s earlier decision as if it was
not given when they elected to launch a new application on
new
facts. If they were convinced that the decision was wrong then
they should have challenged the earlier decision by either
lodging an
appeal or if an irregularity was committed, to advance reasons for
the decision to be reviewed.
[15]
That bail applications are unique in nature has been acknowledged by
the Constitutional Court in
Dlamini (supra)
when it held:
‘
Furthermore
a bail hearing is a unique judicial function. It is obvious
that the peculiar requirements of bail as an interlocutory
and
inherently urgent step were kept in mind when the statute was
drafted. Although it is intended to be a formal court
procedure, it is considerably less formal than a trial. Thus
the evidentiary material proffered need not comply with the strict
rules of oral or written evidence. Also, although bail, like the
trial, is essentially adversarial, the inquisitorial powers of
the
presiding officer are greater. An important point to note here
about bail proceedings is so self-evident that it is often
overlooked. It is 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.’
[16]
The evidence presented by the appellants at the first bail
application is important, not for the reasons listed by Mr Howse,
but
for the purpose of determining whether the evidence presented at the
new application constituted new facts. The effect
of a finding
that no new facts exist is that the original refusal remains in force
and undisturbed. Even if I am mistaken
in my interpretation of
section 65, then the appeal should still fail since it is
procedurally flawed. The notice filed restricted
this appeal to
the decision taken on 14 November 2014.
[17]
Accordingly, I am not persuaded that the magistrate’s decision
on 14 November 2014 was wrong and make the following order:
The
appeal of both appellants is refused.
STEYN
J
Appeal heard on :
4 May 2015
Counsel for the
appellants : Mr J E Howse
Instructed by :
Abdul Karim Attorneys
Counsel for the
respondent : Ms Y Vahed
Instructed by :
The Director of Public Prosecutions
Judgment
handed down on : 8 May 2015
[1]
See
page 168 of record.
[2]
2008
(2) SACR 355 (C).
[3]
Para
57 - 58
[4]
1995
(2) SACR 613 (W).
[5]
Supra
at 622A-B.
[6]
See
record page 140.
[7]
See
record page 21 line 18 to page 22 line 2.
[8]
See
record page 126 lines 11-15.
[9]
See
the
Criminal Procedure Amendment Act 85 of 1997
and the provisions
introduced
by
it.
[10]
The
Constitution of the Republic of South Africa, 1996.
[11]
See
section 35(1)(f) of the Constitution, which reads:
“
Everyone
who is arrested for allegedly committing an offence has the right …
to be released from detention if the interests
of justice permit,
subject to reasonable conditions.”
[12]
1996
(1) SACR 528 (T).
[13]
At
531e-g
[14]
2004
(2) SACR 92 (T).
[15]
Para
27 - 29
[16]
Writing
for the minority.
[17]
1986
(1) SA 361
(T) at 361
[18]
See
Section 35(3)(o) of the Constitution that reads: “Every
accused person has the right to a fair trial, which includes
the
right - … (o) of appeal to, or review by, a higher
court.”
[19]
1996
(2) SACR 122 (T).
[20]
Supra
at 126d.
[21]
[1999] ZACC 8
;
1999
(2) SACR 51
(CC).