S v Green and Another (008/06) [2006] ZASCA 3; 2006 (1) SACR 603 (SCA) (3 March 2006)

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[2006] ZASCA 3
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S v Green and Another (008/06) [2006] ZASCA 3; 2006 (1) SACR 603 (SCA) (3 March 2006)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
Case number 008/06
Reportable
In
the matter between:
ROBERT
GREEN FIRST APPELLANT
BHEKI
MASHABA SECOND APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: FARLAM,
HEHER JJA et CACHALIA AJA
HEARD
: 11
JANUARY 2006
DELIVERED
: 3
MARCH 2006
SUMMARY:
Criminal
Procedure – bail – refusal – Court’s discretion to invoke s
60(3) Act 51 of 1977.
Neutral
citation: This judgment may be referred to as R Green and Another
v
The State [2006] SCA 3 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] The two appellants in
this matter, who are charged in the magistrate’s court for the
regional division of Mpumalanga with robbery
with aggravating
circumstances involving the use of firearms, appealed to the Pretoria
High Court against the decision by a regional
court magistrate to
dismiss their application for bail and to order, in terms of
section
60(11)(a)
of the
Criminal Procedure Act 51 of 1977
, as amended (to
which I shall refer in what follows as ‘the Act’), that they be
detained in custody until dealt with in accordance
with the law.
[2] The magistrate had
found that the appellants had failed to establish exceptional
circumstances justifying their release on bail
in the interests of
justice.
[3] Bosielo J dismissed
the appellants’ appeal, holding that the magistrate was correct in
finding that there were no exceptional
circumstances justifying the
release of the appellants on bail in the interests of justice.
2.
RELEVANT
STATUTORY PROVISIONS
[4] It
is convenient at this stage to set out the statutory provisions which
are relevant in this matter. They are contained in
section 60(1)
,
(2), (3), (10 and (11).
These
sub-sections, as far as is material, read as follows:
‘
(1)(a)
An accused who is in custody in respect of an offence shall … 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.
(2)
In bail proceedings the court –
. . .
(c) may . . . require of
the prosecutor or the accused . . . that evidence be adduced . . . .
(3) If
the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal or that it
lacks
certain important information to reach a decision on the bail
application the presiding officer shall order that such information
or evidence be placed before the court.
…
(10) Notwithstanding the
fact that the prosecution does not oppose the granting of bail, the
court has the duty … to weigh up the
personal interests of the
accused against the interests of justice.
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to –
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
of her release. ..’
[5] Among the offences
listed in Schedule 6 of the Act is robbery involving the use by the
accused or any co-perpetrators or participants
of a firearm.
[6] In terms of section
65(4), which deals with bail appeals to the High Court from decisions
in lower courts, the court hearing the
appeal ‘shall not set aside
the decision against which the appeal is brought, unless such court …
is satisfied that the decision
was wrong, in which event the court …
shall give the decision which in its … opinion the lower court
should have given.’
[7] Section 60 of the Act
was extensively added to by amendments effected by the Criminal
Procedure Second Amendment Acts of 1995
(Act 75 of 1995) and 1997
(Act 85 of 1997). These amendments gave rise to a number of
constitutional challenges to the new bail dispensation,
including the
provision in subsection 11(a). These challenges were considered by
the Constitutional Court in a judgment reported
as
S v Dlamini; S
v Dladla and Others; S v Joubert; S v Schietekat
1999(4) SA 623
(CC). In what follows I shall refer to that judgment as ‘the
Dlamini
decision’.
[8] The
Constitutional Court upheld the constitutionality of the provisions
challenged. As far as sub-section 11(a) is concerned it
held that the
inclusion of the requirement of ‘exceptional circumstances’ in
the sub-section limited the right ‘to be released
from detention if
the interests of justice permit, subject to reasonable conditions’,
which is enshrined in section 35(1)(f) of
the Constitution, but was a
limitation which was reasonable and justifiable in terms of section
36 of the Constitution.
3.
PROCEEDINGS IN
THE COURT OF FIRST INSTANCE
[9] In
the charge sheet in the present case the State alleged that the
appellants were guilty of robbery with aggravating circumstances
(as
defined in section 1 of the Act) in that on the 9
th
September 2005 at or near Nelspruit they assaulted four persons and
with force took from them R7 276 150, the aggravating circumstances
being the use of firearms.
[10] When the appellants
first appeared in court there were two persons charged with them,
namely PT Makhakula and SG Nkosi. The appellants’
attorney, who was
also appearing for Makhakula and Nkosi, opposed an application
brought by the State for a postponement to enable
it to prepare for a
bail application to be brought by the appellants and their
co-accused. Shortly after an adjournment to enable
discussions
between the prosecutor and the defence attorney to take place, the
prosecutor announced that he was withdrawing the case
against
Makhakula and Nkosi and stated that they would probably be used as
State witnesses. The investigating officer, Superintendent
MF Molapo,
then testified in support of the State’s application for a
postponement.
[11] In cross-examination
it emerged that the second appellant was the security manager at the
place where the robbery occurred. It
was put to him that Makhakula
and Nkosi, who had apparently made statements implicating the
appellants, averred that they had been
assaulted and forced to make
statements that were false. This he denied. The defence then called
Makhakula and Nkosi, who repeated
under oath what the defence
attorney had put to Superintendent Molapo.
[12] The
State’s application for a postponement of the case until 24 October
2005 was granted.
[13] On 24 October 2005
the defence attorney applied for access to the police docket, but
this application was refused by the magistrate,
basing his decision
on section 60 (14) of the Act, which in terms provides that an
accused does not have the right of access to the
police docket at the
bail stage.
[14] The magistrate did,
however, grant a defence application calling on the State to indicate
on what grounds it averred that the
appellants were linked to the
robbery.
[15] In response to this
the prosecutor gave the following information as to the grounds on
which the State relied for its contention
that the appellants were
linked with the robbery:
(a) an
amount of approximately R80 000 had been seized by the police, who
were in the process of investigating whether this money
could be
identified as part of the R7 million taken during the robbery;
(b) the
appellants were also connected to the crime by fingerprints;
(c) they
had been identified as persons visible on closed circuit television
film taken during the robbery;
(d) clothing
resembling that worn by participants in the robbery was subsequently
seized while in their possession;
(e) certain
vehicles had been bought immediately after the robbery, some of which
had, as the prosecutor put it, been ‘confiscated’
by the Asset
Forfeiture Unit;
(f) some
of the properties so purchased had disappeared but the police and the
Asset Forfeiture Unit had the necessary particulars
regarding these
properties;
(g) two
persons [clearly in the circumstances he was referring to Makhakula
and Nkosi] had made statements implicating the appellants.
[16] The defence attorney
then applied for access to the closed circuit television tapes. The
State opposed the application and it
was dismissed.
[17] On the following day
the two appellants testified in support of their application. They
both denied that they were linked in
any way with the robbery. The
second appellant said that he was not at the scene when the robbery
took place but had been there earlier
and that while he was on his
way to go to one of the paypoints he had been telephoned and told
about it. Both appellants testified
that they would stand their
trial, not interfere with state witnesses or the police investigation
and not commit any offences in
the interim.
[18] Superintendent
Molapo, the investigating officer, then testified for the State in
support of the State’s opposition to the
application. Most of what
he said in chief was destroyed in cross-examination and it is
accordingly unnecessary for me to summarise
it. The magistrate was
well aware of the aspects in respect of which Superintendent Molapo’s
evidence was discredited in cross-examination.
The aspects on which
he relied in his judgment were the following:
(a) the first appellant’s
fingerprints were found on the utility vehicle which was used by the
robbers as a getaway vehicle to escape
with the proceeds of the
robbery and which was later found abandoned;
(b) it is clear from the
video film taken by the closed circuit television camera that the
first appellant was the driver of the getaway
vehicle;
(c) a t-shirt which the
first appellant wore when he appeared in court resembled the t-shirt
worn by the appellant during the robbery
according to what could be
seen on the closed circuit television film;
(d) the
second appellant could be seen on the closed circuit television film
arriving for work substantially before the normal time,
talking to
two security officers, embracing them and kissing one of them, a
female, leaving the scene and returning to report for
work in the
normal manner, the security officers in question being the persons
who were later seen helping the robbers to load the
proceeds of the
robbery onto the getaway vehicle;
(e) the second
appellant’s employer stated in an affidavit that the second
appellant had reported to him before the robbery that
the first
appellant had approached him for information to enable him to commit
a robbery, that the second appellant had been told
to investigate the
matter so that a case could be brought against the first appellant,
which did not happen before the robbery took
place;
(f) the State was in
possession of other affidavits which indicated that the second
appellant, although it had nothing to do with
his job description,
had on various occasions shortly before the robbery made enquiries
relating to the amount of cash that was in
the safe on the premises
at certain times.
(Counsel for the State
conceded in the course of argument in this court that there were no
other aspects of Superintendent Molapo’s
evidence which survived
the cross-examination and which require to be considered.)
[19] The appellants’
attorney submitted that the appellants had established the presence
of exceptional circumstances which justified
their release as being
in the interests of justice. He contended that the appellants’
evidence, which had not been contradicted,
should be accepted and
that the evidence of the investigating officer should be rejected. He
then subjected this evidence to detailed
criticism which it is not
necessary for me to repeat. Dealing with the evidence that the
appellants were linked with the robbery
by what appears on the closed
circuit television video he pointed out that the State whose case
could in no way be prejudiced by
showing the video to the court,
possibly even in the absence of the appellants and their attorney,
had refused to do so. Relying,
inter alia,
on the judgment of
this Court in
S v Botha
2002 (1) SACR 222
(SCA) at para [21],
in which it was said that proof by an accused that he will probably
be acquitted can constitute exceptional circumstances,
he submitted
that was in fact no evidence against the appellants and that they
should accordingly be released on bail.
[20] In his judgment
refusing the application the magistrate held that, although there
were certain aspects in respect of which Superintendent
Molapo’s
evidence rested, as he put it, on ‘wankelrige bene’, there were
other aspects ‘wat wel deeglik water hou’ and
on the strength of
which he could find that there was what he called ‘’n
prima
facie
sterk saak’ against the appellants. The aspects to which
he referred are those summarized in par [18] above. He was not
prepared
to find that Superintendent Molapo’s evidence on these
points could be rejected. His reasoning on the point appears from the
following
passage in his judgment:
‘…
ons
[weet] almal dat meineed ‘n ernstige misdaad is en indien Malapo
vir die Hof gelieg het aangaande die sterk saak teen die beskuldigdes
wat op hierdie stadium tot beskikking van die Staat is dan kan hy van
meineed aangekla word en sal hy waarskynlik in sy posisie en
hoedanigheid direkte gevangenisstraf in die gesig staar. As dit dus
sou blyk dat Malapo onder eed in hierdie hof gelieg het oor die
feit
dat beskuldigde nommer 1 se vingerafdrukke op die gewraakte voertuig
gevind is en dat die Staat inderdaad oor daardie getuienis
beskik,
sal dit baie maklik wees vir die Staat om hom te vervolg op ‘n
aanklag van meineed. Dieselfde gaan natuurlik oor of indien
hy sou
gelieg het oor dit wat waarneembaar is op die beelde van die geslote
kring televisie kameras of die ander getuieverklarings
waarna hy
verwys het met verwysing na beskuldigde 2 se betrokkenheid. Daarmee
saam kan daar natuurlik, indien hy gelieg het, uiteindelik
‘n
geweldige siviele eis teen hom ingestel word, teen hom en die
toepaslike ministers vir kwaadwillige arrestasie en vervolging
en
kwaadwillige opponering van die borgverrigtinge. Alhoewel Malapo my
verstom het in sekere aspekte van die reg soos dat hy nie
weet wat ‘n
Bylae 1 misdaad is nie, glo ek dat hy wel deeglik bewus is van die
risiko’s verbonde daaraan om te lieg oor die feite
soos ek hier
uitgespel het. Op grond daarvan of weens hierdie observasies voel ek
dat ek nie in ‘n posisie is om te bevind dat
Malapo inderdaad ‘n
ongeloofwaardige getuie is wie se getuienis verwerp moet word
aangaande die getuienis wat tans teen die beskuldigdes
beskikbaar is
nie en moet ek vir doeleindes van hierdie saak bevind dat daar op
sterkte van Malapo se getuienis inderdaad ‘n
prima facie
sterk
saak teen die twee beskuldigdes uitgemaak kan word ongeag hulle
ontkenning dat hulle by die pleging van die misdade betrokke
was of
nie.’
JUDGMENT OF COURT A
QUO
[21] In
his judgment dismissing the appellants’ appeal Bosielo J held that
as the appellants had not appealed against the magistrate’s
refusal
to allow the appellants access to the police docket or to the
material therein which implicates the appellants, his function
was
limited to deciding whether ‘the facts put on record by the
appellants [met] the low threshold as postulated in [the
Dlamini
decision] with regard to “exceptional circumstances”.’ His
conclusion, based on that approach was that the magistrate’s
approach
could not be faulted and the appeal had to be dismissed.
APPELLANTS’
CONTENTIONS BEFORE THIS COURT
[22] Arguing the matter
in this Court counsel for the appellant submitted that the magistrate
had erred in relying on certain portions
of Superintendent Malapo’s
evidence for his finding that there was a strong
prima facie
case
against the appellants. In this regard he pointed out that on other
important parts of the case Malapo had been shown to be untruthful
and submitted on the strength thereof that he had been shown to be an
arrogant witness, who was not deterred by the law of perjury
from
giving evidence which was demonstrably false. In the circumstances,
he submitted, it was inappropriate to rely on his
ipse dixit
on
matters as to which the State could easily have produced the closed
circuit television video and statements from its fingerprint
expert
and the second appellant’s employer and the person or persons to
whom he addressed the enquiries referred to earlier. Producing
the
video and the statements would not have led to a dress rehearsal of
the State’s case and would not have prejudiced it any way.
On the
other hand, if the appellants’ evidence, which had not been
significantly challenged in cross-examination, was correct,
Superintendent Malapo’s evidence relating to the video and the
fingerprints must be false. It followed, he contended, that the
appeal should succeed and the appellants released on bail.
DISCUSSION
[23] I agree with this
criticism of the magistrate’s approach and am satisfied that the
order he made cannot stand. It is accordingly
incumbent on this
Court, acting in terms of section 65(4) of the Act, to give the
decision the magistrate should have given. I do
not think that the
appellants’ counsel’s submission that this Court should order
that the appellants should be released on bail
can be accepted
without more. It seems to me, on the particular and in some respects
peculiar circumstances of this case, that one
cannot assume that the
prosecutor’s refusal to give the defence access to the closed
circuit television video can necessarily be
explained on the basis
that Superintendent Malapo’s evidence in regard thereto was false:
it is possible, to put it no higher,
that the prosecutor had not seen
the video. (The defence application did not relate to the other items
of evidence.) It is clear
from section 60 (10) that the court’s
function in a bail application is intended to be more pro-active than
in normal criminal
proceedings. As it was put in the
Dlamini
decision (at para [11]), ‘a bail hearing is a unique judicial
function’ and ‘the inquisitorial powers of the presiding officer
are greater’. On a proper consideration of the case on which the
State relied any reasonable court must have concluded that it
lacked
reliable and important information necessary to reach a decision,
notwithstanding that such information was apparently readily
available. In such circumstances the court has no discretion but to
invoke s 60(3). In my view, the magistrate should, instead of
refusing bail without more, have ordered the State to grant the
defence access to the video tapes and any statements made by the
police fingerprint experts linking the fingerprints of either of the
appellants with the crime, with the decision on whether or not
to
grant bail to be made thereafter.
[24] I am aware that such
an order would have been contrary to that made earlier by the
magistrate when the defence had applied for
access to the video tape
but that decision was interlocutory and subject to revision in the
light of subsequent events, in this case
the substantial demolition
of evidence of the investigating officer. (The fact that that
decision was not attacked on appeal, something
which appears to have
influenced the learned judge in the court below, takes the case no
further. An appeal against the magistrate’s
decision would have
been confined to the matter before him when he refused to order the
production of the video tapes and may well
have been unsuccessful.)
ORDER
[25] The following order
is made:
1. The
appeal succeeds.
2. The order made in the
court
a quo
is set aside and replaced by the following:
‘
A. The
appeal succeeds.
The order made by the
magistrate is set aside and replaced by the following:
“
1. No
order on the bail application is made at this stage.
2. The State is ordered
to grant the defence access to the video tapes and any statements
made by the police fingerprint experts relating
to the fingerprints
of either the appellants linking them with the crime.”’
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
HEHER JA
CACHALIA AJA