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[2013] ZAGPPHC 511
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Prinsloo v S (CC98/2010) [2013] ZAGPPHC 511 (4 February 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE NORTH
GAUTENG HIGH COURT,
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE
NUMBER: CC98/2010
DATE:
04 FEBRUARY 2013
In the matter
between:
JACOBUS MICHAEL
PRINSLOO
.............................
APPLICANT
And
THE
STATE
..............................................................
RESPONDENT
JUDGMENT
MAVUNDLA J.
[1] The applicant is
an adult male aged 66 years old and a South African citizen of No.
7…. F….. S…... M…..
Pretoria. He was
indicted and convicted by this Court on the following charges:
1.1 theft;
1.2 murder read with
the provision 51 of Act 105 of 1997,
1.3 Contravening the
provisions of Section 3, read with the provisions of Section 1, 120
(1) and 121 of Act 60 of 2000 and
1.4 Contravening the
provisions of Section 90, read with the provisions of Section 1,
120(1) and 121 of Act 60 of 2000.
[2] The applicant
was sentenced to 25 years imprisonment for the aforesaid offences.
The applicant brought and testified in a bail
application pending the
bringing of an application for leave to appeal. The State opposed the
last mentioned bail application.
This court dismissed this last
mentioned bail application because it was not satisfied that there
existed exceptional circumstances,
which in the interest of justice
permitted the admission of the applicant to bail. The court
subsequently granted leave to appeal
to the Supreme Court of Appeal
against both the conviction and sentence. The applicant then sought
to bring an application for
bail on new grounds, namely, that leave
to appeal has since been granted. This latter application was opposed
by the State on the
basis that the court was functus officio to
entertain another bail application. This court upheld the legal point
which was raised
by the State that it was functus officio.
[3] Leave to appeal
to the Supreme Court of Appeal against both decisions refusing bail
pending the bringing of an application for
leave to appeal, and also
the decision of the court that it was functus officio were granted.
It is common cause that the Supreme
Court of Appeal overturned the
decision of this Court that it was functus officio and referred the
matter back to this Court. It
is common cause that the appeal against
the refusal to admit the applicant on bail, pending the bringing of
an application for
leave to appeal was not prosecuted.
[4] The applicant
has since filed a supplementary affidavit in support of his bail
application on alleged new grounds. The applicant
stated in this
affidavit, inter alia, that:
According to his
legal representative, before the appeal was heard, learned Lewis JA
enquired from the prosecution whether they
were not prepared to
consider in consenting to certain bail conditions and requested both
parties to consider this. He has further
been informed that the
learned Theron JA also inquired from the prosecution in open Court
whether it was not possible that the
matter in respect of bail
between the prosecution and the defence could be resolved.
[5] The State
indicated that it seeks a postponement of the bail application to
afford them an opportunity to file affidavits to
respondent to what
is supposed to have been said by the Justices of the Supreme Court of
Appeal. In order to avert the undue and
protracted delay of this
matter, this Court expressed its disapproval to a situation that
would result in the officers of this
court who were intimately at all
relevant times in the main trial and the previous bail application.
This would require a new legal
team for the State to further conduct
this matter. A delay would have been prejudicial to the applicant.
This court took the view
that, what is alleged to have been said by
the learned justices of the Supreme Court of Appeal and not being
contained in a judgment
was not binding to
this court and shall therefore not be taken into consideration in the
adjudication of this application.
[6] What is
contended to be new facts is contained in the applicant’s
supplementary affidavit. The new facts are supposed
to be the
following: he has been in custody for almost 6 months subsequent to
being sentenced. He was suffering from serious insomnia,
has no
strength in his body. He complains of pains throughout his body. He
has not seen his Oncologist since his incarceration,
although he has
seen a general medical practitioner. He has since developed a serious
lump in his throat. His vocal cords have
become hoarse and seriously
needs medical attention. He is afraid that the cancer that was
removed from his throat area has further
spread and or revived. He is
suffering from high blood pressure. He complains of shoulder pain.
His cholesterol due to diet provided
in prison has also dangerously
risen above 6. The only medication provided to him is from his
relatives which sometimes arrive
two weeks late during this time of
his incarceration without medication.
[7] The applicant
has further stated that his house in Montana has a bond of
approximately R500, 000. 00. His two sons presently
reside with his
pensioned sister at this place who presently purchases and pays for
the daily food and maintenance. His son Jaco
is presently in his
final year of engineering (electronics). His other son Stefan
obtained a temporary employment at a workshop
at Wonderboom Airport.
He earns a small salary and cannot support himself. He completed
matric the previous year.
[8] The applicant
further stated that he can immediately obtain employment from Mr.
Rudolph de Bruin at Sephako Minerals and will
earn between R50, 000.
00 and R60, 000. 00 per month. This would assist him to further
maintain the children, service the bonds
and furnish his
representatives with sufficient funds to timeously and in accordance
with Court Rules prosecute his appeal on merits.
It needs to be noted
that there was no confirmatory affidavit filed by the said Mr. De
Bruin.
[9] According to the
applicant, at no stage did he have any monies abroad. He held shares
in a company called Global Precious
Commodities, which
has since been liquidated, making his shares worthless. He has
neither funds nor assets in any foreign country.
He further stated
that he was informed that he is to be transferred into a cell with 40
other inmates. It is very difficult in
that there are language
barriers and they do not understand one another. They are woken up at
5: 30 in the mornings. The doors
are opened at 7: 30. They are then
released into the square until about 11 o’clock, when they are
locked up again. The cells
are again opened at 1:30 for them to have
lunch. Thereafter they are allowed into the square where after they
locked up at 2: 30.
He has already been assaulted in prison by three
other inmates who wanted to steal some of his property. He was
threatened that
if he reported the matter to the authorities he would
be killed.
[10] He further
stated that a specific diet was prescribed by the oncologist. Despite
his attempts to raise this with the prison
authorities none of this
has been complied with. He is afraid that his health condition would
seriously deteriorate. He further
complains about not receiving his
preventative medication and that this endangers his life.
[11] The applicant
further stated that he is not a flight risk. He has all the reason
than ever before to prosecute his appeal successfully
to the Supreme
Court of appeal, well knowing that if he flee the country he will be
extradited. He does not want to be fugitive
of the law for the rest
of his life. He pledges the major part of his estate which brings
about that, if he is flight risk and
should he flee, he would not
have any assets to maintain himself with. His family and assets bind
him to the country.
[12] The applicant
has also attached confirmatory affidavits of both his sons. In their
respective confirmatory affidavits his sons
confirm what their father
has said about them, and beg the court to grant the applicant bail.
[13] In his unsigned
affidavit filed together with his notice of application pending
appeal to the Supreme Court of Appeal, which
was filed on 18 July
2013, the applicant stated, inter alia, that he religiously attended
court during the trial and after conviction
when his bail was
increased to R30, 000 and further extended. He has a passport which
he is willing to have surrendered to the
state if so ordered. He
further stated that he has no family ties abroad. He has nowhere to
go and South Africa is his country.
After bail was set he and his two
sons during November 2009 left for a holiday to Switzerland, Austria
and Germany where his eldest
sons Jaco led one of the world’s
greatest violinist on organ. Pending his trial he did geologist
surveys in Mozambique and
Zimbabwe and returned every time to South
Africa. During the trial he went to Mozambique twice and adhered
strictly to the conditions
without problem with the State. It has
further been conveyed to him that the Republic of South Africa has
several extradition agreements
with other countries. He does not want
to be for the rest of his life a fugitive of the law. His children
and family is too precious
for him and will in no way attempt to be
fugitive.
[14] The conviction
of the applicant was a sequel to a dastardly killing of his divorced
wife with whom he has two grown up sons.
The killing was done by the
applicant’s gardener Mr. Moloi who pleaded guilty to the
offence. Mr. Moloi testified against
the applicant and implicated
him. This court accepted, inter alia, the evidence, of Mr. Moloi who
was a single witness in so far
as his implicating the applicant in
the main trial to secured the conviction of the applicant and this
court held the view that
there was a reasonable possibility that
another court might find that he was not a credible witness. It was
contended on behalf
of the applicant that therefore there was a very
strong and arguable case for success of his appeal and this was
therefore a new
and an exceptional circumstance warranting the
admission of the applicant to bail.
[15] Section 321 of
the Criminal Procedure Act 51 prohibit the suspension of a sentence
imposed by a superior court by reason of
any appeal against
conviction unless the trial court thinks it fit to order the
sentenced accused’s release on bail. Therefore
the court has a
discretion to admit a convicted person to bail pending appeal; vide
Khawuleza v S [2005] jol 14239 (TK).
[16] The fact that
leave to appeal against conviction and sentence was granted is in no
way an exceptional circumstance warranting
admission to bail pending
appeal, vide S v Bruintjies
2003 (2) SACR 575
(SCA) at para [6] at
p577 S v Masonganye and
another
2012 (1)
SACR 292
(SCA) at para [13]; Yvonne Beetge v The State case no 925/12
Supreme Court decision delivered on 11 February 2013. It is however
one of the factors to be considered in the totality of the evidence
placed before the court.
[17] The duration of
six month’s incarceration referred to by the applicant, is in
my view, not an exceptional circumstance.
It is a consequence of
sentencing and the logistical problems that are encountered in any
system of imprisonment.
[18] The health
problem of the applicant is not something new. During the initial
bail application which was turned down by this
court and not appealed
against, the health aspect was mentioned and considered. The aspect
of body pains and insomnia, are in my
view, mere psychosomatic signs
of failing to deal with and accept the reality of the changed
circumstances the applicant finds
himself in. The applicant has not
placed any medical evidence before this court dealing with his
alleged health difficulties. In
any event, on his own admission he
can access a general practitioner in prison, who; needs to or can
refer the applicant to the
hospital for any other medical treatment
not provided in prison. I am not persuaded that the applicant has
placed before this court
any credible evidence that deals with health
aspect to be regarded as amounting to exceptional circumstances,
warranting that this
court should exercise its discretion in favour
of admitting the applicant to bail.
[19] The applicant’s
sons are grown up men and no longer children who it can be said that
are still, financially dependent
on the applicant. It needs mention
that during the trial it emerged that there is a guest house which
the applicant hold 50% and
the two sons hold the other 50% of shares.
This aspect was not addressed by the applicant as one of the alleged
changed circumstances.
Besides, the applicant has assets which if
need be, can be converted into monetary term to deal with any alleged
financial difficulties
encountered by the two grown up sons of the
applicant. I am therefore not persuaded that there is either new fact
nor exceptional
circumstances shown by the applicant in this regard.
[20] The applicant
was convicted of serious offences which fall within the purview of
schedule 6 of the Criminal Procedure Act.
There is no doubt in my
mind that, society expects offenders of serious violent crimes to be
sentenced to long imprisonment, otherwise
its confidence in the
justice system might be lost. I am inclined to agree with Jozana AJ
in Khawuleza v S (supra) at page 4 where
he opined that the courts in
considering the release of a person on bail pending appeal should
also have regard to the interest
of society. This indeed accords with
s60 (5) (h) of Act 51 of 1977. The applicant has not placed any
evidence which demonstrate
that his release would not raise the
indignation of the public, especially the family of the deceased.
[21] In the
premises, I conclude that there are neither new factors nor
exceptional circumstances which warrant that the applicant,
in the
exercise of my discretion should be admitted to bail. Therefore the
bail application pending appeal is dismissed.
N.M. MAj&JffiDLA
JtitGE OF THE HIGH COURT
DATE OF
HEARING : 27 NOVEMBER 2013
DATE OF
JUDGMENT : 04 DECEMBER 2013
APPLICANT'S
ATT : DREYER & DREYER ATTORNEYS
APPLICANT S
ADV : MR. P. A. VAN WYK S.C.
RESPONDENTS'
ATT : JACQUES VAN DER MERWE ATTORNEYS
RESPONDENTS'
ADV : ADV. N.P. MARRIOT &
ADV VAN DER
WESTHUIZEN