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
>>
2014
>>
[2014] ZAFSHC 61
|
|
Moanakwena v S (A75/2014) [2014] ZAFSHC 61 (2 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
APPEAL
NO.: A75/2014
In
the appeal between:-
DAVID
MOATLHODI
MOANAKWENA
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
23 APRIL 2014
DELIVERED
ON:
2 M
AY
2014
INTRODUCTION
[1]
Appellant is a […..] year old warrant officer in the employ of
the South African Police Service, deployed at the Hawks’
headquarters. Previously he was a member of the Organised Crime
Unit tasked to investigate truck heists.
[2]
The count against him – cited as accused 3 - is one of robbery
with aggravating circumstances in that on or about 11 October
2013 he
and two other co-accused – accused 1 and 2 - were involved in a
truck heist in the district of Winburg.
Ex
facie
the charge sheet forming part of
the record a fourth accused has been arrested on 3 February 2014 in
respect of the count and as
anticipated during appellant’s bail
hearing the charge against accused 1 has been withdrawn on 29 January
2014.
[3]
The bail applications of accused 1 and 2, made prior to appellant’s
arrest, were unsuccessful and are immaterial for purposes
of this
appeal. On 20 January 2014 appellant applied for bail in the
magistrate’s court, Winburg. The bail hearing
started on
that day and continued on 27 January 2014 when the application was
dismissed.
[4]
Appellant appealed the judgment of the court
a
quo
and on 7 April 2014 Naidoo J
inter
alia
removed the bail appeal from the
roll and referred the matter back to the court
a
quo
for the magistrate’s
reasons. This has been supplied in the meantime and the bail
appeal was enrolled for argument
on Wednesday, 23 April 2014.
THE
ISSUES
[5]
The grounds of appeal can be summarised as follows, i.e. that the
court
a quo
erred
5.1 in
finding that the State has a strong case against the appellant;
5.2
that appellant has not shown exceptional circumstances permitting his
release on bail.
THE
REASONS OF THE COURT
A QUO
[6]
The court
a quo
did not provide full reasons for judgment when the bail application
was dismissed, apparently due to the insufficiency of available
court
time. The learned magistrate merely indicated that she was
satisfied that the State had a
prima
facie
case against accused number 3
(the appellant), that the case against him was indeed strong and
furthermore, that he failed to prove
that he was entitled to be
released on bail. It is common cause that the offence with
which the appellant is charged, is
a schedule 6 offence and that he
carried the onus to prove exceptional circumstances which in the
interest of justice permit his
release on bail.
[7]
In her reasons the learned magistrate dealt fully with appellant’s
personal circumstances as placed on record. It
is also common
cause that appellant has been suspended without pay by his employer
based on the criminal case against him.
Pertaining to the
merits of the matter the court accepted the evidence that appellant
is linked with the crime based on cellphone
evidence. The court
a quo
found that appellant’s evidence was highly improbable, in
particular his version as to his whereabouts during the relevant
time
especially when considered with the evidence of the investigating
officer, warrant officer Basson. In conclusion the
learned
magistrate found that the offence is of a very serious nature, that
the evidence against the appellant is strong, that
he has already
been suspended without pay and consequently he failed to prove that
he was entitled to be released on bail.
LEGAL
PRINCIPLES
[8]
Section 60(11)(a) of the Criminal Procedure Act, 51 of 1977, (“the
CPA”) stipulates, pertaining to schedule 6 offences,
that
“
the
court shall order that the accused be detained in custody until he or
she is dealt with in accordance with the law, unless t
he
accused
, having been given a reasonable
opportunity to do so, adduces evidence which
satisfies
the court that exceptional circumstances exist which in the interest
of justice permit his or her release;
”
(emphasis added.)
[9]
The functions and powers of a court of appeal hearing a bail appeal
is similar to those in an appeal against conviction and
sentence.
Section 65(4) of the CPA stipulates that the court of appeal shall
not set aside the court
a quo’s
decision unless such court is satisfied
that the decision was wrong. Therefore, in the case of doubt,
the court of appeal
should not interfere. Hefer J (as he then
was) considered the issue as follows in
S
v Barber
1979 (4) SA 218
(D) at
220E – H:
“
This
Court has to be persuaded that the magistrate exercised the
discretion which he has wrongly. Accordingly, although this Court
may
have a different view, it should not substitute its own view for
that of the magistrate because that would be an unfair
interference
with the magistrate's exercise of his discretion.”
Binns-Ward
AJ (as he then was) stated in
S v
Porthen and Others
2004 (2) SACR
242
(C) at para [17], after discussing the aforesaid dictum of Hefer
J, that it remains necessary:
“
to
be mindful that a bail appeal, including one affected by the
provisions of section 60(11)(
a
),
goes to the question of deprivation of personal liberty. In my
view, that consideration is a further factor confirming
that s 65(4)
of the CPA should be construed in a manner which does not unduly
restrict the ambit of an appeal court's competence
to decide that the
lower court's decision to refuse bail was ‘wrong’.”
The
court of appeal shall consider the issue of bail afresh where the
court
a quo
misdirected itself materially on the facts or legal principles.
See
S v Mpulampula
2007 (2) SACR 133
(E) at 136e and
S v
Jacobs
2011 (1) SACR 490
(ECP) at
para [18]. See also Van der Berg,
Bail,
A Practitioner’s Guide,
3
rd
ed p. 232-4.
[10]
It is important to note that for purposes of section 60(11)(a) an
accused shall be detained in custody until dealt with in
accordance
with the law, unless he/she after having been given a reasonable
opportunity to do so, satisfies the court that exceptional
circumstances exist which in the interest of justice permit his or
her release. The standard of proof is on a balance of
probabilities. See Van der Berg,
loc
cit
p. 97 and
S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at paras [61], [78] and [79].
[11]
Once exceptional circumstances have been established by a bail
applicant, the enquiry must focus on the balance between the
interest
of the State as set out in section 60(4) – 60(8)A on the one
hand and the appellant’s interest in his personal
freedom as
set out in section 60(9) on the other. See Du Toit
et
al
Commentary
on the
Criminal Procedure Act
, p
9-48B. The following dictum of Vivier ADCJ in
S
v Botha en ‘n Ander
2002(1)
SACR 222 (SCA) para [19] is apposite:
“
Gewoonlik,
maar nie noodwendig nie, sal dit (“with reference to
‘exceptional circumstances’”) omstandighede
wees
wat daarop gemik is om die onwaarskynlikheid van die gebeure genoem
in art 60(4)(a) - (e) te bewys. Met betrekking
tot
daardie gebeure, of andersins, moet die aangevoerde omstandighede, in
die konteks van die besondere saak, van so 'n aard wees
dat dit as
buitengewoon aangemerk kan word… Dit is vir die hof om
in elke saak in die besondere omstandighede van
daardie saak 'n
waarde-oordeel te vel of die bewese omstandighede van so 'n aard is
dat dit as buitengewoon aangemerk kan word.”
See
also
S v Scott-Crossley
2007 (2) SACR 470 (SCA) at paras [7] and [12].
[12]
Section 60(4)(a)
– (e) concern the likelihood that the accused,
if released, (i) will endanger the safety of the public or a
particular person,
(ii) will attempt to evade his trial, (iii)
will attempt to influence or intimidate witnesses or to conceal or
destroy evidence,
(iv) will undermine the proper functioning of the
criminal justice system or (v) will disturb the public order or
undermine public
peace or security.
[13]
“Exceptional circumstances” as a concept has not been
defined thus far. The Constitutional Court declined
to define
it in
Dlamini
loc
cit,
but
made it clear in paragraph [76] that even so-called “ordinary
circumstances” may serve to establish “exceptional
circumstances”. See also
S
v Rudolph
2010
(1) SACR 262
(SCA) at 266 h-i and
Mooi
v S
(162/12)
[2012] ZASCA 79
(30 May 2012 at paras [11] – [12].
There is no onus on the State to
disprove exceptional circumstances. The accused must on a
balance of probabilities prove
that the State’s case was
non-existent or subject to serious doubt.
See
S v
Mathebula
2010 (1) SACR 55
(SCA) at paras [11] – [13].
In
S v Petersen
2008 (2) SACR 355
(C) at para [55] the Full Bench concluded as
follows on the meaning and interpretation of exceptional
circumstances:
“
Generally
speaking 'exceptional' is indicative of something unusual,
extraordinary, remarkable, peculiar or simply different…
This may, of course, mean different things to different people
(exceptional circumstances), so that allowance should be made for
a
certain measure of flexibility in the judicial approach to the
question… In essence the court will be exercising
a
value judgment in accordance with all the relevant facts and
circumstances, and with reference to all the applicable legal
criteria.”
[14]
An accused claiming innocence and that he will ultimately be
acquitted, must prove his future acquittal on a balance of
probabilities.
See
S
v Mathebula
supra
.
Van der Berg
loc
cit
at
para 7.16.5 regards this as an “outrageous
onus”.
Where an
accused, confronted with allegations that he has committed a schedule
6 offence, does not make out a
prima
facie
case
of the prosecution failing, there is no duty on the prosecution to
present evidence in rebuttal. See
S
v Mathebula
,
supra,
para [12] and
S
v Viljoen
,
2002 (2) SACR 550
(SCA) at para [15]
.
[15]
Personal circumstances which are really “commonplace”
cannot constitute exceptional circumstances for purposes
of
section
60(11)(a).
See Du Toit
et al, loc
cit
at 9-62 and
S
v Scott-Crossley
,
loc
cit
, at para [12].
[16]
The fact that a bail applicant will contest the admissibility of a
confession on the ground that it was induced by a police
assault and
which may to an extent be thought to take away from the strength of
the State case, was not considered as an exceptional
circumstance in
S v Mpulampula
,
loc cit
,
at 136b.
[17]
It is not the function of the court considering bail to make a
provisional finding of guilt, but to assess the
prima
facie
strength of the State case.
See
S v Van Wyk
loc cit
at
para [6].
EVALUATION
OF THE EVIDENCE, THE JUDGMENT OF THE COURT
A
QUO AND COUNSEL’S SUBMISSIONS
[18]
I do not intend to canvass all arguments raised by the parties during
oral argument, save to mention that I have considered
these, as well
as the authorities relied upon, together with the evidence placed
before the court
a quo
and the reasons advanced by the magistrate.
[19]
Mr Monareng, counsel for appellant, relied on several authorities in
support of his argument that the appeal should succeed.
He did
not provide me with copies of the judgments relied upon, but I
managed to obtain copies, save for the judgment of
Amrose
Mathebula v The State
which was
heard in the Gauteng North High Court in which judgment the judgment
of Van Dijkhorst J in
S v Vermaas
1996 (1) SACR 528
(T) was cited with approval. I considered the
Vermaas
judgment. Far from being in support of the arguments raised by
Mr Monareng, the judgment of Van Dijkhorst J tends to support
the
State’s submission that appellant failed to prove exceptional
circumstances. Mr Monareng also relied on the judgment
of
Mhlambi AJ in
Ramaisa v S
(A24/2012)
[2012] ZAFSHC 88
(3 May 2012). This case involved a
school teacher who was charged with the murder of his wife and whose
bail application
was dismissed in the magistrate’s court.
His bail appeal was successful. Nothing in that judgment
supports any
of the arguments raised on behalf of the appellant
in
casu
.
Section 60(11)
did not
apply in that case. Reliance was also placed on the judgment of
Lekale J in
Molefe and Others v S
(A269/2013)
[2014] ZAFSHC 1
(9 January 2014). The learned judge
criticised the manner in which the accused was not confronted during
cross-examination
with the statement of a
section 204
witness, the
photo identification parade and cellphone records. I
n
casu
the investigating officer followed
up appellant’s alibi after appellant had testified and prior to
his own testimony.
The evidence tendered was obtained after
appellant had been cross-examined, but appellant was entitled to ask
for re-opening of
his case in order to deal with such evidence, but
refrained. Nothing in the judgment of Lekale J tends to
support the
appellant’s case
in
casu
. I was also referred to the
judgment of
Mooi v S
quoted
supra
.
In that case the investigating officer stated during the bail hearing
that the State had a strong case against the appellant,
but as the
SCA indicated, his evidence did not reveal this. The State did
not manage, notwithstanding a trial running for
2½ years, to
complete the evidence of their alleged strong case in the trial
court, whilst the source of all the evidence
against the appellant
became known on the day of the incident and it could not be difficult
to gather these then.
[20]
Appellant’s version was that his friend Chris, accused 2, came
to him after work on 10 October 2013 to borrow money for
fuel.
In the process and as he was seated in accused 2’s motor
vehicle, his cellphone must have been left behind in
accused 2’s
vehicle when he alighted from the vehicle. Accused 2 brought
this cellphone back to him early the following
day. It is this
cellphone, according the evidence of the investigating officer, which
picked up signals from the cellphone
tower in the Ventersburg area,
close to Winburg, during the night of 10 and 11 October 2013 when the
truck heist occurred.
Appellant resides in Crystal Park,
Benoni, Gauteng, about 300 km from the Ventersburg/Winburg’s
districts. He also
failed to turn up for work on 11 October,
notwithstanding the fact that he, on his version, informed his
commander telephonically
that he would be late for work.
Instead, he used the time to pay certain household accounts.
His version is not only
farfetched, but also vague and evasive in
many instances. There is absolutely no reason why appellant
would have got into
accused 2’s motor vehicle if the sole
purpose was to merely hand over money to him.
[21]
The specific cellphone of appellant – he had four at the time –
allegedly fell in the water at the end of 2013
and appellant claimed
to be unaware of the whereabouts of the relevant simcard.
During his testimony he admitted that he
used this cellphone with
number 0……. until it was damaged. This is in
direct conflict with his denial to the
Police immediately after his
arrest to which I shall refer again
infra.
[
22
]
According to accused 2 who was called to testify on behalf of
appellant nobody phoned from appellant’s phone whilst the
phone
was in his possession, but when confronted in cross-examination, he
tried to indicate that there might have been times when
he left his
vehicle and the cellphone alone and that somebody could have used the
cellphone and put it back in the vehicle.
This is improbable
and farfetched. Initially he testified that when he found a
cellphone in his vehicle, he phoned this phone
from his own cellphone
to establish whose it was, only to find out that the phone belonged
to appellant. Later in his testimony
he recognised the fallacy
of his version and changed it by saying that he used the cellphone to
phone his own phone and then established
that it belonged to
appellant. He admitted telephonic contact with accused 1 whom
he was to meet in Botshabelo during the
relevant night. However
he never got there.
[23]
Warrant Officer Basson, the investigating officer, testified on
behalf of the State. According to cellphone records that
he
obtained, the cellphones of accused 2 and appellant registered the
same cellphone towers during the evening and early morning
of 10 and
11 October 2013 indicating that these cellphones were moving in the
direction, along the N1, to Ventersburg in the Free
State. Up
and until that time the cellphones did not communicate with each
other, but during the early hours of 11 October
there was contact
between the cellphones whilst both cellphones picked up the
Ventersburg cellphone tower.
[24]
The investigating officer also had contact with captain Maponya, the
commander of appellant, who informed him that she had
a meeting with
appellant and warrant officer Molefe during the morning of 10 October
as they were supposed to make contact with
a police informer that
evening, but that this meeting never took place. According to
captain Maponya she could not get into
contact with appellant during
the day of 11 October 2013 as all his cellphones were switched off.
It should be mentioned
that appellant testified that he used four
cellphones with four different numbers at the time. She only
got contact with
him at about 8 o’ clock that evening for the
first time. This is in direct conflict with appellant’s
version.
According to her appellant mentioned that he had slept
the whole day and that he had put his cellphones off. This
aspect
was never put in cross-examination to appellant as the
investigating officer followed up appellant’s alibi after he
had testified
and informed the court
a
quo
accordingly. However
appellant was represented by a senior attorney who could and should
have dealt with this issue in detail
in cross-examination of the
investigating officer and if necessary, to ask for the re-opening of
his client’s case, which
he failed to do. An aspect which
reflects adversely on appellant’s version is that he denied
during an interview, just
after his arrest and when he had been
informed that he was linked to the crime through cellphone records,
that he used a cellphone
with number 0……...
According to the investigating officer this phone was not registered
in appellant’s
name, but that false information was provided to
register it in terms of RICA. In court appellant admitted his
ownership
and usage of the particular phone, but in order to
exculpate him a version was placed before the court that is really
improbable
and farfetched.
[25]
Samuel Jantjie, accused 1, and accused 2 unsuccessfully applied for
bail and their bail applications were finalised and dismissed
as
mentioned
supra
.
It appears from the evidence that accused 1 made a statement
incriminating accused 2 and 3. The case against accused
1 has
been withdrawn on 29 January 2014, two days after the bail
application of appellant was dismissed. This is apparent
from
the charge sheet forming part of the bail appeal record.
Consequently and as anticipated during the evidence of the
investigating officer, he will be used as a
section 204
witness in
the forthcoming trial.
[26]
Bail proceedings are not to be viewed as a full dress rehearsal for
the criminal trial and during the bail application the
duty of the
court is merely to assess the
prima
facie
strength of the State’s
case against the applicant as opposed to making a provisional finding
on the guilt or otherwise of
the accused. The making of
credibility findings of witnesses on the merits of the case against a
bail applicant is left to
the trial court, which will ultimately be
better placed to assess the evidence in its totality. See
S
v Van Wyk
2005 (1) SACR 41
(SCA) at
par [6].
[27]
The learned magistrate did not deal with the requirements set out in
section 60(4)
of the CPA in as many words, but she was in all
probabilities well aware that the appellant, being a senior member of
the Hawks
and the South African Police Service and a former member of
the anti-truck heist unit thereof, may well use his contacts, once
released on bail, in an attempt to influence or intimidate witnesses
of to conceal or destroy evidence and as a consequence or otherwise,
also undermine or jeopardise the objectives of the proper functioning
of the criminal justice system. The appellant has been
suspended without pay and at this stage his prospects within the
South African Police Service must be bleak to say the least.
Therefore, bearing in mind the case against him and the uncertainty
as to whether he would be returning to his employment, these
circumstances are such that there is indeed a likelihood that he
might attempt to evade his trial, notwithstanding strong family
ties. Appellant’s
ipse dixit
in this regard is insufficient.
He did not prove that it is improbable that any of the events set out
in
section 60(4)
will not materialise if he is released on bail.
[28]
It is on record that there are other suspects – still at large
- involved in the particular crime and that, at least
at the stage
when the bail hearing took place, the police investigation had not
been finalised. Although this was not expressly
stated by the
learned magistrate as a factor, she indicated in paragraph 7 of her
reasons that she was convinced as a result of
the factors mentioned
as well as other factors that appellant had not shown on a balance of
probabilities that he was entitled
to be released on bail.
[29]
The fact that appellant is a member of the South African Police
Service cannot be seen as an exceptional circumstance.
In my
view, this is an aspect that counts against him
in
casu
, especially insofar as he, who
until recently was supposed to take on the fight against criminals
involved in truck heists, is
now, based on
prima
facie
evidence, in direct conflict with
law and order which the South African Police Service so dearly want
to protect. I have
carefully considered the submissions,
especially those made on behalf of appellant, but found them to be
without merit. I
am not convinced that the court
a
quo
exercised her discretion wrongly or
that she committed any material misdirections on the facts or legal
principles. On the
contrary, I am satisfied that she was
correct in dismissing the bail application. Consequently the
appeal cannot succeed.
ORDER
[30]
The following order is issued:
1.
Appellant’s appeal against the dismissal of his bail
application is dismissed.
______________
J.
P. DAFFUE, J
On
behalf of appellant: Adv Monareng
Instructed
by:
Matlho
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv B Claasen
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse