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[2014] ZAGPPHC 436
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Groenewald v S (A356/14) [2014] ZAGPPHC 436 (17 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE NO: A356/14
MARTHINUS
CHRISTIAAN
GROENEWALD
.....................................................................
APPELLANT
and
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
KHUMALO J
[1] This is an
Appeal against the refusal by the Magistrate Court in Modimmole to
admit Appellant to bail. He was arrested in that
district on a charge
of stock theft of 25 cattle in the value of +-R200 000. At the time
of his bail application on 2 September
2013, he was also a suspect in
another charge of stock theft of cattle valued at R650 000 and
scheduled to appear in the Mokopane
Regional Court in the following
day to apply for bail.
[2] The arrest of
the Appellant followed a news bulletin aired on radio, television and
published in the newspapers regarding the
stock thefts at Modimmole
and Mokopane and the suspects that were wanted by the police for the
thefts. Appellant came forward,
accompanied by his attorney and gave
himself up to the police. His subsequent bid to be released on bail
on 5 September 2013 was
unsuccessful, hence this appeal.
[3]
Counsel for the Plaintiff, Mr Van Wyngaard argued that the learned
magistrate in the court a quo erred when he premised his
refusal to
admit Appellant to bail on the fact that there is a very strong case
against Appellant with prospects of success, therefore
Appellant will
not stand trial, is a flight risk and will in the likelihood
influence the witnesses, ignoring Appellant’s
personal
circumstances that were brought to the court’s attention.
Counsel implored that in S
v
Stanford
1997
(1) SACR 221
(C), it was pronounced that it is trite that the
prosecutor must establish a probability premised on objective facts
that the suspect
will evade trial or is a flight risk.
[4] He further
argued that Appellant gave himself up to the police. There was no
warrant against him and that should be an indication
that he is not a
flight risk.
[5] s 60 of the Act,
in ss (4) (1) (a), reads that:
“
An
accused who is in custody in respect of an offence shall, subject to
the provisions of s 50 (6) 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.”
[6] s 60 (4) of the
Criminal Procedure Act 51 of 1977 (“The Act”) provides as
follows:
That 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 a
likelihood that the accused, if he or she is released on bail, will
endanger the safety of the public or any
particular person or will
commit a Schedule 1 offence; or
(b) where there is a
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 a
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 a
likelihood that the accused, if he or she were released on bail, will
undermine or jeopardize the objectives
or the proper functioning of
the criminal justice system, including the bail system;
(e) where in
exceptional circumstances there is all likelihood that the release of
the accused will disturb the public order or
undermine the public
peace or security; or order or undermine the public peace or
security,
[7] The factors that
are to be considered to establish if the accused (is a flight risk)
might evade the trial as provided in ss
60 (4) (b) are set out in s
60 (6) that reads as follows:-
‘
in
considering whether the ground in subsection (4) (b) has been
established, the court may where applicable, take into account
the
following factors, namely-
(a) the emotional,
family, community or occupational ties of the accused to the place at
which he is to be tried;
(b)the assets held
by the accused and the place where such assets are situated;
(c) the means, and
travel documents held by the accused, which may enable him or her to
leave the country;
(d) the extent, if
any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e)the question
whether the extradition of the accused could readily be effected
should he or she flee across the borders of the
Republic in an
attempt to evade his or her trial;
(f) the nature and
the gravity of the charge on which the accused is to be tried;
(g) the strength of
the case against the accused and the incentive that he or she in
consequence have to attempt to evade his or
her trial;
(h) the nature and
gravity of the punishment which is likely to be imposed should the
accused be convicted of the charges against
him or her;
(i) the binding
effect and enforceability of bail conditions which may be imposed and
the ease with which such conditions could
be breached;
(j) any other factor
which in the opinion of the court should be taken into account.’
[8] In considering
whether the ground in ss (4) (d) has been established, the court may
where applicable, take into account the
following factors, namely-
(a) the fact that
the accused is familiar with the identity of the witnesses and with
the which they may bring against him or her;
(b) whether the
witness has already made statements and agreed to testify;
(c) whether the
investigation against the accused has already been completed;
(d) the relationship
of the accused with the various witnesses and the extent to which
they could be influenced or intimidated;
(e)...;
(f) whether accused
has got access to the evidentiary material which is to be presented
at his trial;
The ease in which
the evidentiary material could be concealed or destroyed
[9]
Stainford
that
has been referred to by Appellant’s Counsel went beyond what
Appellant’s Counsel mentioned in his argument and
held that:
‘
the
court a quo had lost sight of the fact that denial of bail would be
in the interest of justice
only
if one of the grounds
set
out in s 60 (4) was probable. The onus is upon the
Respondent/prosecution to establish the existence of such grounds for
the
continued incarceration of the Appellant in the interest of
justice.
[10]
How the prosecution is to go about establishing the required grounds
to discharge the onus is explained in
Botha
v Minister of Safety and Security & Others; January v
Minister of Safety and Security & Others
102
(10 SACR 305
(ECP) (at [33] by Tshiki BJ as follows:
"Prosecutors
also have a duty to establish facts that justify the further
incarceration of a detained person before he or she
can apply to the
court for the detainee’s further incarceration. One of the
methods expected to be used by the prosecutor
is to establish, from
the police official investigating the case, all the facts which would
justify the further detention of the
arrested person. He or she had
to protect the public interest, act with objectivity, take proper
account of the position of the
suspect and the victim, and pay
attention to all relevant circumstances, irrespective of whether they
are to the advantage or disadvantage
of a suspect.”
(my
emphasis).
[11] The Respondent
Counsel in opposing the Appeal, submitted that in the court a quo,
the Respondent did not only prove a strong
case that has prospects of
success against the Appellant, but also that after his arrest, the
investigating officer discovered
that he was a suspect in six other
cases of stock theft of an approximate value of R2 400 000 with more
witnesses still to be interrogated.
There was likelihood that he
might interfere with the witnesses and an indication that he seems to
be operating a syndicate, a
fact that was still being investigated
with more arrests imminent. The Respondent also submitted that the
case invoked public interest
especially to cattle or stock farmers,
their workers and businesses whose livelihood is depended on stock,
highlighting the hardships
created by the stock thefts.
[12] Counsel further
argued, in contention to the argument that Appellant’s conduct
of handing himself to the police demonstrate
that he is not a flight
risk, that Appellant at the time was aware of being a suspect only in
the two cases of stock theft, so
the surfacing of the other six cases
after his arrest and the fact that all of them carry a potential
heavy sentence might lead
to him evading trial.
[13] Respondent
submitted the abovementioned evidence in the court a quo by leading
the evidence of two police officers who were
involved in the
investigation of the stock thefts in the relevant areas, one being
assigned to this particular case and the one
in Mokopane. They
testified to the existence of statements of witnesses, one from an
erstwhile employee linked to Appellant’s
operations, a video
footage of stolen cattle being transported in trucks and trailers,
some of the parts on the trucks seen on
the video found with stolen
cattle in Appellant’s business premises, Appellant’s bank
statements showing money received
as proof of payment by an abattoir
for the stolen stock, witnesses that are prepared to testify but
afraid of Appellant who allege
that he is dangerous.
[14] A stock farming
expert was, although his evidence regarded as premature, also called
to give perspective on the impact the
offence has on commercial
farmers, especially cattle farmers, villagers, ordinary people with
vested interest and to convey their
outrage which they demonstrated
by attending the bail proceedings on the first day of the bail
hearing. He also testified to the
negative impact caused by stock
theft to the people and the economy in general.
[15] The
investigating officers further pointed out that Appellant’s
surrender of his passport is not a measure preventing
him from
fleeing because he still can obtain a temporary passport. They
indicated that Appellant does not have immovable assets
in the
country. He has been staying in his brother’s property for 13
years as a tenant, whilst one of his brothers has been
residing in
Australia for nearly twelve (12) years. They emphasised that
Appellant is facing very serious charges and harsh sentences
that
might motivate him to evade trial.
[16] In response to
the evidence led by the Respondent, Appellant tendered his evidence
in a form of an affidavit, outlining his
personal circumstances.
According to him, the grounds that entitle him to be admitted to bail
are that his mother, sister and brother
live not far from him in
Heidelberg and Boksburg. Only the one brother lives out of the
country, being a farmer in Australia and
has been living there for 12
years. He resides in a property that he is renting from his brother,
for which he is paying the bond
and which property used to belong to
him. He has been living in it for 13 years, has three children with
his ex - wife and a one
year old with a former girlfriend who lives
in the second residential dwelling in the property. Although he has
no fixed property
or investments he owns unencumbered movables
consisting of trucks, a trailer, motor vehicles, livestock to the
value of +-R850
000 and has one bank account. He conducts his
business at premises that he is renting from his mother principally
dealing in livestock
and employs six permanent employees with a
turnover of R750 00. He submitted that he, as a result have economic
and family ties
in the country. He also mentioned his handing himself
over to the police to prove not being a flight risk.
[17]
Counsel for Appellant referred to the matter of S
v
Mosoanganye
2012
(1) SACR 292
where Harms A P commented that:
“
However,
what the court failed to consider is that the personal circumstances
of an accused-much more than assets- determine whether
the accused is
a flight risk. Therefore holding that in considering an application
for bail pending an appeal, the court should
consider not only the
assets of the convicted person but also his or her personal
circumstances to determine whether or not she
is a flight risk.”
[18] In response to
the prima facie strong case and prospects of success established by
the Respondent Appellant stated in his affidavit
that he is not
required to deal with his defence and contended that the presumption
of innocence remain operative. He therefore
did not rebut, as he was
expected to do, the prima facie case established against him or deal
with the evidence of a possibility
of interference with the witnesses
in his affidavit.
[19] It is trite
that this court has no authority to interfere with the discretion of
the court a quo unless if the court a quo
has erred or misdirected
itself as clearly stipulated in s 65 (4) of the Act that 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."
[20]
The court a quo, in refusing bail to the Appellant, explained that
the right to be presumed innocent is not a bail right but
a trial
right as plainly pointed out in S
v
Dlamini
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)
(1999 (4) SA 623
;
1999 (7) BCLR 771).
Fittingly, the
duty of the court in a bail application is to
prima
facie
determine
the relative strength of the state case against the bail applicant as
opposed to making a provisional finding of guilt
or innocence of such
an applicant; S
v
Van Wyk
2005
(1) SACR 41
(SCA) at par [6]. Therefore the learned magistrate could
not deal with the innocence or guilt of the Appellant but only with a
fact whether or not the Respondent has established a prima facie case
against the Appellant that makes his continued incarceration
to be in
the interest of justice. A determination that is to be made in
consideration with other various factors that has been
highlighted by
s 60 (4), which the learned magistrate indicated in this matter to be
the strength of the gathered evidence, the
video camera, witnesses
statements, items and stolen cattle found in Appellant business
premises and all the other factors that
revealed a strong case
against the Appellant plus the possibility that he might influence or
interfere with the witnesses and the
seriousness of the offence.
[21] In addition the
court took cognisance of the reaction of the community, interest of
other role players with invested interest
like the victims, balancing
that with the interest of the Appellant, looking at the pending cases
against him and the lack of possession
of immovable property in the
country. On the basis of that evaluation concluded that the
Respondent had proven that it would not
be in the interest of justice
to release the Appellant on bail.
[22]
The establishment of the
prima
facie
case
by the Respondent coupled with the likelihood of Appellant
influencing or interfering with the witnesses, people who are known
to him, placed a burden of rebuttal upon the Appellant. The
magistrate correctly applied his mind in concluding that Appellant’s
failure to rebut the existence of a
prima
facie
case,
when there is likelihood that he will influence or interfere with the
witnesses and the severity of the charge, the nature
and gravity of
punishment, factors under s 60 (4) of the Act were such that,
notwithstanding his personal circumstances, it would
not be in the
interest of justice to release Appellant on bail and if he might be a
flight risk.
[23]
In S
v Masoanganyi
referred
to also by Appellant’s Counsel, Harms A P in that matter, when
considering a bail after conviction pending an appeal,
emphasized the
importance of personal circumstances and explained that,
“
that
is not the end of the matter. One still has to consider the
seriousness of the crimes and the possible length of incarceration.”
In
the matter of S
v
DV
2012
(2) SACR also referred to by the Appellant, the court held that:
“
The
court a quo had proceeded from a wrong premise, which made it
concentrate only on the seriousness of the offence without dealing
with the case whether, if released on bail, the Appellants would
interfere or intimidate state witnesses, or whether their personal
circumstances were such that they would not stand trial."
It is therefore
important to note that neither personal circumstances nor any of the
factors in s 60 (4) can be considered in isolation
but are together
of equal importance when deciding on the interest of justice. The
court is as well required in exercising its
discretion, to balance
the interest of justice and the constitutional right of the Appellant
to liberty in that way.
[24] The other
factor that might not have been highlighted with equal significance
is that the Appellant had recently travelled
to visit his brother in
Australia, just before the arrest.
[25] The Appellant
has rather failed to prove that this court has a reason not to defer
to the exercise of the court a quo’s
discretion or that the
court misdirected itself or erred. I, in that regard make the
following order:
[25.1] The appeal
against refusal of bail by the Magistrate Court, Modimolle is
dismissed.
N V KHUMALO J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION:
PRETORIA
On behalf of
Appellant: Adv Van der Westhuizen/ Wyngaard
Instructed by:
Beukes & Sonja Nel Attorneys
Brakpan
On behalf of
Respondent: Adv Pruis
Instructed by:
National Director of Public Prosecutions