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[2014] ZAFSHC 1
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Molefe and Others v S (A269/2013) [2014] ZAFSHC 1 (9 January 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A269/2013
In
the matter between:
SIKHONYELA
MOLEFE
.................................
First
Appellant
TERREANCE
MOLOI
…..........................................
Second
Appellant
SIPHO
NKOSI
................................................
Third
Appellant
and
THE
STATE
......................................................
Respondent
CORAM:
LEKALE,
J
HEARD
ON:
18
DECEMBER 2013
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON:
9
JANUARY 2014
REASONS
[1]
On the 16
th
February 2013 and at the intersection of
Paardeberg Road and Olifantshoek Road at Sasolburg a Protea Coin
Security cash delivery
truck, which was there and then being driven
by the second appellant, was robbed of,
inter alia
, R2 412
000.00 in cash. The three appellants were, thereafter, arrested
separately and appeared together with some three other
persons before
the Magistrate’s Court at Sasolburg on,
inter alia
,
allegations of conspiracy to commit aggravated robbery, aggravated
robbery and attempted murder. On the 31
st
July 2013 the
appellants’ respective bail applications were dismissed on the
basis that they did not show, on a balance of
probabilities, that
exceptional circumstances exist which, in the interests of justice,
permit their release on bail.
[2]
They felt aggrieved by the decision not to admit them to bail and, on
the 18
th
December 2013, approached this court on an urgent
basis on appeal against the same. I, thereupon, upheld their
respective appeals
and undertook to furnish reasons in due course.
These are now my reasons as promised.
[3]
On denying them bail the learned magistrate found that they each
relied on the ground that the State has a
prima facie
weak
case against them respectively as an exceptional circumstance
contemplated by section 60(11)(a) of the Criminal Procedure
Act as
amended (CPA).In this regard the court below found that they each did
not show, on a balance of probabilities, that the
case against them
is non-existent or that they each would eventually be acquitted on
the charges. The court
a quo
also found that there existed the
possibility of the commission of further similar crimes if the
appellants were released on bail
because some firearms used in the
crimes and the stolen cash had not been recovered. The learned
magistrate further found that,
in the case of the second appellant,
there exists a
prima facie
case based on a confession. Against
the first appellant the court below found that there exists a
prima
facie
case in the form of photo identification parade and car
tracking records. In respect of the third appellant the learned
magistrate
found that there exists strong
prima facie
evidence
of cellphone records, photo identification parade and witness
statement linking him to the crimes. The court
a quo
further
found that the third appellant had the propensity to commit a
particular type of crime regard being had to the cases pending
against him.
[4]
On behalf of the first and second appellants it is contended, in the
notice of appeal, that the court below erred in,
inter alia
,
finding that they bore the burden of proving that they would
eventually be acquitted on the charges preferred against them and,
further, in not accepting the evidence surrounding the making of the
confession by the second appellant.
[5]
It is effectively submitted for the appellants that the court below
erred in not considering the quality of the state case against
each
of them together with his respective personal circumstances relative
to,
inter alia
, the provisions of section 60(4) of the CPA
when deciding whether or not exceptional circumstances exist which
justify their release
on bail.Ms Van den Heever for first and second
appellants painstakingly refers to case law on the relevance of
factors such as
the likelihood that an accused person would be
incentivised by the strength of the state case against him not to
stand trial if
released on bail.
[6]
The first and second appellants submitted affidavits in support of
their respective applications, while the third appellant
gave oral
evidence to establish the existence of exceptional circumstances
justifying his release on bail. They all denied any
involvement
whatsoever in the crimes involved and, further, relied on the absence
of the factors set out in section 60(4) of the
CPA to show that the
interests of justice permit their release from detention.
[7]
Save for two affidavits submitted by the State, the only witness who
testified in opposition of bail was the investigating officer
who,
effectively, did not contend that any of the appellants was a flight
risk or was likely to commit further crimes. The
thrust of his
opposition was underpinned by the view that their release would
tamper with continuing investigations regard being
had to the fact
that other suspects were still at large and there existed evidence
that some of the applicants were in contact
with such fugitives from
justice.
[8]
It is correct, as observed by the court below, that the onus in a
bail application governed by the provisions of section 60(11)(a)
of
the CPA is on the bail applicant to prove, by way of evidence and on
a balance of probabilities, that exceptional circumstances
exist,
which in the interests of justice, permit his or her release on bail.
[9]
It is, further, correct as the court
a quo
pointed out that in
a bail application the duty of the court is to assess the
prima
facie
strength of the state case against the bail applicant as
opposed to making a provisional finding on the guilt or otherwise of
such
an applicant. Bail proceedings are not to be viewed as a full
dress rehearsal for trial. The making of credibility findings of
witnesses on the merits of the case against the bail applicant is
left to the trial court which is better placed to assess such
witnesses.
(See
S v Van Wyk
2005 (1) SACR 41
(SCA) at par [6].)
[10]
The court
a quo
furthermore correctly observed, with reference
to case law, that where the bail applicant relies on the weakness of
the state case,
as an exceptional circumstance justifying his
release, he is obliged to prove, on a balance of probabilities, that
he will be acquitted
of the charge. In that event the prosecution is
not obliged to disclose full details of its case prematurely and
before the time
when the matter is ripe for trial. Until and unless
the bail applicant has established a
prima facie
case that the
prosecution would fail against him, there is no duty on the State to
rebut his evidence.The incarceration of an innocent
person
constitutes exceptional circumstance warranting release on bail of
such an innocent bail applicant.
(See
S v Mathebula
2010 (1) SACR 55
(SCA) at par [12];
S
v Viljoen
2002 (2) SACR 550
(SCA) at 561f – g and
S
v Botha
2002 (1) SACR 222
(SCA) at par [21])
[11]
The need for frequent and lengthy consultations with legal
representatives and/or expert witnesses may constitute exceptional
circumstances for bail purposes in an appropriate case.
(See
Van
Vuuren v S
[2011] ZAGPJHC185 delivered on 7 December 2011.)
[12]
It is clear from the record that each appellant relied not only on
the nature of the state case against him in establishing
exceptional
circumstances justifying his release on bail. They each also
presented facts contemplated in section 60(4) of the CPA
either by
way of oral evidence or affidavits contending that there existed no
likelihood that they would,
inter alia
, evade their trial or
commit further crimes. The court below, thus, misdirected herself to
the extent that she approached the applications
on the footing that
the issue before her only concerned the question whether or not the
state case against each appellant was non-existent
or weak without
reference to their respective personal circumstances relative to
section 60(4) of CPA. Where relied upon in a bail
application, such
facts are relevant and ought not to be ignored.
(See
S
v Dlamini
;
S
v Dladla and Others
;
S
v Joubert
;
S
v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) and
S
v DV and Others
2012 (2) SACR 492
(GNP).)
FIRST
APPELLANT’S CASE
[13]
It is common cause between the parties that the first appellant was
initially arrested on the 24
th
May 2013 but the charges
were withdrawn by the prosecutor only to be re-arrested on the 31
st
May 2013. He deposed to affidavit,
inter alia
, excluding the
possibility of abscondment on his part, interference with
investigations and witnesses as well as commission of
further crimes.
[14]
A perusal of the record reveals that the state case against him as
outlined by the investigating officer in his oral testimony
is that
he was identified at a photo identification parade by a section 204
witness who links him to the crimes in that he attended
planning
meetings in respect of the same and participated by patrolling the
relevant roads to keep an eye on the police, among
others. It
is, further, apparent from the relevant evidence that the State
concedes, as at the date of the bail application,
that it is not in a
position to say that the tracking reports locate the appellant’s
vehicle in the vicinity of the scene
of the crimes. It is,
furthermore, contended by the investigating officer that the
appellant is linked to the crimes by cellphone
reports.
[15]
The aforegoing contention by the State is, however, without merit
regard being had to the fact that the investigating officer
is quick
to point out under cross-examination that the relevant cellphone
reports are still being analysed and, as such, no final
report is
available. It can, therefore, not be said with any degree of
certainty that the state case is that the appellant is linked
to the
crimes by cell phone reports. The effect of the investigating
officer’s evidence is simply that the first appellant
might or
might not be linked to the crimes through cell phone reports once a
final report has been issued. The witness on whose
evidence the State
intends to rely in its case against the appellant herein is, in
effect, an accomplice. His or her evidence would,
therefore, have to
be approached with caution by the trial court if and when it is
eventually tendered.
(See
S
v Francis
1991 (1) SACR 198
(A) at 205f.)
[16]
In the absence of any corroborating evidence directly implicating the
appellant herein, the State would face an uphill battle
in its case
against him where the onus on it requires that it proves its case
beyond a reasonable doubt. It can, in my view,
not be said that
the state case against the appellant is strong regard, further, being
had to the fact that the investigating officer
conceded, under
cross-examination, that upon his arrest the appellant furnished an
innocent explanation for his presence along
the relevant road to the
effect that he was attending to personal matters
viz.
that he
went to fetch water in the Vaal triangle at the relevant time.
(Compare
S
v DV
,
supra
,
at par [19].)
SECOND
APPELLANT’S CASE
[17]
The second appellant’s affidavit reveals that it cannot be said
that it is in the interests of justice to refuse him
bail insofar as
he negatives the likelihood of events set out in section 60(4) of the
CPA. He takes the matter further by deposing
to the effect that
continued detention hampers proper consultation with his legal
representatives.
[18]
The state case against him is that he made a confession before a
magistrate and that a member of his crew, who was with him
in the
truck at the time of the robbery, made an additional statement to the
effect that the appellant behaved suspiciously, as
the driver, during
the robbery.
[19]
In my view the relevant statement to the magistrate does not
“
amount
to an unequivocal acknowledgement by the accused
that
he is
guilty…
tantamount to a plea of guilty
”
in
order to qualify as a confession as correctly and effectively put to
the investigating officer by Ms Van den Heever for the appellant
herein during cross- examination. In this regard it is worth noting
that the investigating officer conceded under cross-examination
that
a reading of the statement as a whole reveals that the appellant
acted under duress when he co-operated with the actual perpetrators
of the crimes in that his life and those of his wife and children
were threatened. He, further, testified that the appellant mentioned
that he would work with the police and that he was threatened to
commit the offence.
(See
R
v Becker
1929
AD 167)
[20]
In an appropriate case compulsion to commit a crime, as a state of
necessity affecting unlawfulness or culpability, may in
law justify a
crime or exclude culpability.
(See
S
v Goliath
1972 (3) SA 1
(A) and
S
v Mandela
2001 (1) SACR 156
(C) at 167c – e.)
[21]
The evidence of members of his crew to the effect that the second
appellant acted suspiciously would, in my judgment, not strengthen
the state case in any manner whatsoever once the statement to the
magistrate is admitted by the trial court. At best for
the
State such evidence would, in my view, be neutral insofar as it would
also be in consonance with the fact that the appellant
was compelled
by threats to participate in the crime.
[22]
On the face of the relevant statement to the magistrate it cannot, in
my opinion, be said that the state case against the second
appellant
is strong insofar as it is possible,
ex
facie
the same statement, that in law he either did not act unlawfully or
culpably when he conspired and co-operated with the robbers.
THIRD
APPELLANT’S CASE
[23]
Unlike his co-appellants the third appellant gave oral evidence and
his evidence could be, and in fact was, tested by way of
cross-examination on behalf of the State. In his testimony he,
inter
alia
, denied participation in the crimes and went further to deny
that he was in Sasolburg on the day in question. He, further,
excluded
the possibility of evading his trial as well as interfering
with witnesses.
[24]
The state case against him is based on cellphone reports, photo
identification parade and section 204 witness in the same manner
in
which the first appellant is allegedly linked to the crimes.
Arguments and findings in respect of the case against the first
appellant are, therefore, of equal application to the third appellant
insofar as, even in his case, the investigation with regard
to
cellphone reports is still continuing according to the investigating
officer.
[25]
Although he was subjected to full and thorough cross-examination by
the State it was, surprisingly, not disputed either directly
or by
implication that he was not involved in the crimes in question.The
state case to the effect that he is linked to the crimes
through cell
phone reports, photo identification parade and statement of section
204 witness was not put to him to enable him to
at least respond
thereto.When he closed his case after testifying he had, in my
opinion, established a
prima
facie
case that he was being held in detention for crimes he had not
committed. It is now trite that such a state of affairs constitutes
an exceptional circumstance warranting admission to bail in the
interests of justice. It was only when the investigating officer
testified that his version was refuted. At that stage in the
proceedings he had no opportunity to present evidence or comment on
the relevant evidence. It was left to his legal representative to
fight the battle for him by way of cross-examination and argument.
It
is true that the onus was on him and not on the State to establish
the existence of exceptional circumstances justifying his
release on
bail. It is, however, equally true that fairness required of the
State to play open cards with him by enabling him
to at least know
and respond to what it intended to place before the court later in
the proceedings. If the State felt that he
had not
prima
facie
discharged the onus on him, it was not obliged to place evidence
before the court in rebuttal and could simply have closed its
case
without tendering any such evidence as was pointed out in
S
v Mathebula
,
supra
.Fairness
extends to both the State and the bail applicant. Ambush in bail
proceedings cannot be tolerated inasmuch as it is not
allowed in
trial proceedings as the State prosecutor correctly and effectively
pointed out during the proceedings before the court
a
quo
.
[26]
The court below further found, in respect of the third appellant,
that the nature and extent of the cases pending against
him, as well
as the fact that he was on bail when he was arrested for the instant
matter, clearly indicate that he has the propensity
to commit a
particular type of crime, and if released, that would result in the
possibility of him committing further similar offences.In
my view it
cannot, on the facts before the court below, be said that the fact
that he has pending cases against him and that he
was on bail when he
was arrested, indicate such propensity regard being had to the fact
that he undisputedly does not have any
previous convictions, let
alone of the nature of the crimes involved in the instant matter.
Section 60(5) of the CPA clothes the
court with the discretion to
have regard to,
inter alia
, the bail applicant’s past
conduct and evidence that he previously committed an offence referred
to in Schedule 1 while released
on bail in considering whether or not
there exists the likelihood that, if released on bail, he will commit
a Schedule 1 offence.
It was not the investigating officer’s
evidence that such a possibility existed. His fear was that the
release of any of
the appellants would influence the investigation
negatively as far as witnesses and other evidence were concerned. The
presumption
of innocence operates in favour of the accused bail
applicant and it cannot, as such, be assumed that, because he is
facing particular
charges, he is
per se
guilty of the same.
[27]
The court
a quo
further found that the fact that some
firearms, which were used in the instant matter, were still
outstanding together with the
stolen loot indicated the likelihood
that the appellants would commit further similar crimes. With respect
the learned magistrate
appears, in this regard, to have moved from
the premise that the appellants were guilty of the charges preferred
against them and,
further, to have concluded that they are in control
of the relevant firearms without any factual basis therefor. All the
aforegoing
despite the fact that the court below was expressly alive
to her task in a bail application.
[28]I
was, therefore, satisfied that all the appellants had proved, on a
balance of probabilities, that the cumulative effect of
their
respective personal circumstances on the weak nature of the state
case against each of them is exceptional and permits their
release on
bail in the interests of justice.
ORDER
[29]
In consequence the following order issued:
(a)
the respective appeals succeed;
(b)
bail is granted to each of the (3) three appellants in the amount of
R20000-00 on condition that should they each pay bail:
(i)
they shall each not directly or indirectly interfere with witnesses
whose names appear on the list attached to the indictment
served on
them or those whose names may be added thereto in future;
(ii)
they shall each not come in contact with erstwhile employers and
employees of Protea Coin Security and/or South African Police
Services(SAPS);
(iii)
they shall each appear in the Circuit Court at Sasolburg on 19 May
2014 at 09:30 am and shall remain in attendance until the
matter is
finalised.
J.
LEKALE, J
On behalf of first and
second
appellants:
Adv Van den Heever
Instructed
by:
Nardus
Grové Attorneys
88
Fox Street
JOHANNESBURG
On
behalf of third appellant: Adv Monare
Instructed
by:
Mahlobogoane
Attorneys
27
Leslie Street
Spes
Bona Building
VEREENIGING
/spieterse