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[2013] ZAGPPHC 75
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Deyi v S (A16/13) [2013] ZAGPPHC 75 (6 March 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER A16/13
DATE:06/03/2013
BEFORE
THE HONOURABLE JUDGE;
THULARE
AJ
In
the matter between:
MZOXOLO
VICTOR
…..................................................................................
APPELLANT
AND
THE
STATE
….................................................................................................
RESPONDENT
JUDGMENT
THULARE
AJ
[1]
Appellant, a male of 46 years of age, is
charged with rape as defined in section 3 of the Criminal Law (Sexual
Offences and Related
Matters) Amendment Act, 2007 (Act No. 32 of
2007). It is alleged that he unlawfully and intentionally committed
an act of sexual
penetration with the complainant, a 4 year old girl
child in Kanana, in the district of Klerksdorp on or about 12 October
2012.
The complainant, being a child under 12 years, is a female
person incapable of consenting to a sexual act in terms of section 57
of the above-mentioned Act.
[2]
If convicted, and the trial court is not
satisfied that substantial and compelling circumstances exist which
justify the imposition
of a lesser sentence, appellant shall be
sentenced to imprisonment for life as prescribed by section 51 read
with schedule 2 of
the Criminal Law Amendment Act, 1997 (Act No. 105
of 1997).
[3]
Appellant was arrested on 30 October
2012 and made his first appearance in Orkney on 31 October 2012. The
matter was postponed to
7 November 2012 for
his
own legal representative as well as for bail application. The
application was considered on 7 November 2012 and the Magistrate
refused to grant appellant to bail. It is this decision, to refuse
bail, in respect of which appellant approaches this court for
relief.
[4]
I have to express my displeasure at the
quality of the output of Mr Langa, attorney for the appellant, in
this matter. The papers
suggest that he personally appeared for the
appellant in the court a quo. It is not wrong, in my view, to
conclude that what was
put before the magistrate was his best
professional industry as an attorney representing the appellant.
[5]
In my view the magistrate did not raise
concerns herewith as she was heavily influenced by what Schreiner JA
said in Trans-African
Insurance Co. Ltd v Maluleka
1956 (2) SA 273
(AA) at 278:
"No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which are
an important
element in the machinery for the administration of justice. But on
the other hand technical objections to less than
perfect procedural
steps should not be permitted in the absence of prejudice, to
interfere with the expeditious and, if possible,
inexpensive decision
of cases on their real merits."
The
"Commissioner of oaths" to what purports to be an
affidavit, has identifying features of a policeman or woman. This
is
because there is a signature, followed by what appears to be a
surname. Between the signature and what appears to be the surname,
but on top, are the letters "CST", which is a practice
abbreviation for "Constable". On top of this all, is
what
is clearly, a force number. There is, in my view, reason to believe
that the commissioner of oaths, for purposes of appellant's
affidavit
in support of his bail application, is a police constable.
What
then follows is a cause for concern, if not alarm. How the constable
found access to the magistrate stamp may be perhaps because
he or she
is a court orderly and perhaps because of the trust that the
magistrate in that district has of the court orderly, to
allow them
to use the magistrate stamp, for instance on warrant of detentions
(J7). In this case at least, it would appear that
the trust was
misplaced at most, or at least there was abuse of the right of access
to the stamp of the magistrate, in that it
is the magistrate stamp
that the constable uses to give his capacity as well as business
address as commissioner of oaths on appellant's
statement.
Having
regard to the nature and purpose of the directory provision of the
Regulations (Regulation 4 (2) of the Regulations issued
in terms of
section 10 of the Justice of the Peace and Commissioners of Oath Act,
1963 (Act No. 16 of 1963)), which require a commissioner
of oaths to
state his/her designation and the area for which he /she holds his
appointment or office, I am not satisfied that there
will be no
confusion, even for a person of ordinary intelligence to deduce the
office held by the commissioner of oaths in this
matter. A person of
ordinary intelligence, will deduce misrepresentation of the true
facts. I am not inclined, in the face of such
misrepresentation, in
the context of this application, to exercise my discretion in favour
of receiving the document relied upon
in this matter as an affidavit.
At best, it remains an unsworn statement.
[6]
Even if I were to consider the
statements made, the result, in my view, does not assist the
appellant. His founding papers comprise
two parts, to wit, the
statement earlier referred to, and the annexure. For ease of
reference, I will first deal with the statement.
It is preferable to
quote its substantive part in total. After the title it reads:
"I,
the undersigned
Mzoxolo
Victor Deyi
Hereby
state under oath as follows:
L
1.1 I am an adult male, 46 years old, born on 14/3/1977 and the
Accused in this matter.
1.2
The facts contained herein fall within my personal knowledge and is
true and correct.
2.
I shall in no way attempt to evade my trial or any court appearance
in this regard.
3.
I shall in no way tamper, or attempt to tamper with any witnesses by
influencing or intimidating them to hide or destroy evidence.
4.
There is no probability that, should I be released on bail that
I shall
undermine the goals or proper functioning of the Criminal Law system,
including the bail system.
5.
I confirm the contents of the Formal Bail Application Form attached
hereto, marked "Annexure 'A'". The contents of
this form
forms part of my affidavit
6.
I shall adhere to all conditions of bail, set out by the Honourable
Court.
7.
Should I not be released on bail, I may
incur severe financial losses, in that I may forfeit pay for the
period that I am held in
custody. There is also a possible risk that
I may lose employment In paragraph 8 appellant says he is familiar
with the contents
of the statement and understands it, that he has no
objection in taking the prescribed oath and that he considers the
oath as binding
on his conscience and thereafter is his signature,
before the certificate which is followed by the signature of the
commissioner
and stamp as earlier discussed.
[7]
Paragraph 2 is a restatement of section
60(4) (b), paragraph 3 is a restatement of section 60(4)(c) and
paragraph 4 is a restatement
of section 60(4)(d) of the Criminal
Procedure Act, 1977 (Act No. 51 of 1977). These are barren
conclusions. No facts are set out,
upon which these conclusions are
arrived at Paragraphs 1.2 and 5 are advisory statements. Paragraph 6
is a commitment, which is
not supported by any facts.
The
terminology employed in paragraph 7 shows that appellant sets out
some speculative opinions. The use of the word "may",
twice
in the first sentence and once in the second sentence, is indicative
that he is not sure that these may be the eventualities.
In
the result, only paragraph 1.1 is a set out of facts, in the whole
document.
[8]
In the annexure, appellant states that
he is married and has four children aged 12, 5, 2 years and another
at 3 months respectively.
His wife is unemployed. His family lives in
Qumbu, in the Eastern Cape. He resides for the past six years at
23107 Extension 14,
Kanana in Orkney at his RDP house and lives alone
at this address. He is employed at Vaal Reefs Number 8, Great Noligwa
as a Rock
Driller for the past 14 years and earns R6000-00 per month.
He has furniture in his RDP house. He has no family outside the
borders
of South Africa.
[9]
He has no previous convictions and no
pending cases. His neighbour will assist with the payment of bail and
has R500-00 available.
[10]
He is not related to the complainant and
does not stay in the same house with her. The complainant's
grandmother is his former girlfriend.
He intends to plead not guilty.
He understands the seriousness of the crime and the possible
sentences that the court may consider.
[11]
It is disturbing for officers of the
court to treat other areas, especially areas that in the past fell
within the areas of former
Transkei, Ciskei, Bophuthatswana, Venda,
KwaNdebele and Lebowa as if those areas are not part of one,
sovereign and democratic
State of the Republic of South Africa, as
set out in section 1 of the Constitution of the Republic of South
Africa, 1996 (Act No.
108 of 1996). It is worrying if that treatment
has the tendency to deny other citizens, especially accused persons,
of the equal
entitlement to the rights, privileges and benefits of
citizenship.
[12]
Although these areas are mainly rural,
there are municipalities as well as traditional leadership structures
that make land, zones
or properties easily identifiable.
Consequently, in my view, there is no other reason why the magistrate
could not be favoured
with full particularization of the other home
that appellant has in the Eastern Cape, where his wife and children
allegedly reside.
The only reason I can discern, is incompetence or
sheer laziness. Either Mr Langa or the Investigating Officer, or both
of them,
could have assisted the court. They did not.
[13]
I find it disturbing that Mr Langa did
not assist the appellant to reduce what appears to be his answer to
the allegations against
him, in writing, and as part of the affidavit
filed in support of his application.
Surprisingly,
Mr Langa adduces what amount to evidential material from the bar in
his address to the court, wherein the court is
informed that the
grandmother of the complainant is a former girlfriend of the
appellant and that the reason she accuses him is
because this
grandmother had two boyfriends and when the appellant discovered that
she is involved with another man who also works
at the same mine as
him, he terminated his relationship with her and then she made the
allegations against him as a retaliation
because she wants to
continue with the relationship and get money on both sides, from both
men.
[14]
It is inconceivable how the State would
not object to this manner of putting information before a court by an
attorney. It is of
concern why the magistrate allowed it. That piece
of information is not evidence before the court, to be considered for
purposes
of determining the issue.
[15]
In its opposition to the application,
the State used the statement of the investigating officer, Kedibone
Julia Monnatlala, a detective
constable stationed at the Family
Violence, Child protection and Sexual Offences, Klerksdorp, in the
employ of the South African
Police Services.
[16]
She states the facts of the State case
as that on 12 October 2012 at approximately 09:10 the complainant was
at her residential
place sleeping with her elder brother of 8 years
in the dining room. When they opened the door, it was appellant. He
told them
to wake up and go with him to the shop where he was going
to buy airtime and simbas. They accompanied him and thereafter went
with
him to his residential place. After he unlocked the door, they
went inside the house and proceeded to the bedroom where the
television
is situated, to watch television. In the bedroom,
appellant gave the brother a chair to sit on and watch television
whilst he and
applicant climbed onto the bed.
The
brother saw appellant on top of the victim. The brother was surprised
and screamed and told appellant that he is going to report
appellant
to the mother at home. The brother and sister left for home and
reported the matter. The victim was taken for medical
examination on
the same day and the doctor found signs of forceful penetration and
bruises all over the genitalia area. Appellant
was arrested on 30
October 2012.
There
are still other witness statements outstanding as well as a DNA
report from the Forensic Science Laboratory.
[17]
It is also worth noting that even in her
instance, the Commissioner of oaths did not comply with the
Regulations (Regulation 4(2)(b).
No designation and area of
appointment is given, amongst others. Other than that the
Commissioner also appears to be a policeman,
nothing more is known.
[18]
In an application like the present, the
legal position is set out in section 60(11) which reads as follows:
"Notwithstanding
any provision of this Act; where an accused is charged an offence
referred to
-
(a)
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 in the interests of justice permit
his or her release."
[19]
It is common cause that the appellant is
charged with a schedule 6 offence. No doubt appellant has been given
a reasonable opportunity
to adduce evidence. His application was
considered by the magistrate. The question is whether the magistrate
misdirected herself,
and as a result of her misdirection, refused to
grant appellant to bail.
[20]
Appellant, in my view, made an unsworn
statement or unattested declaration in support of his application for
bail. (See East Cape
Consumer Co-operative v National Liquor
1986 (4)
SA 612
(ECD). What is before me, is not an affidavit, affirmation,
solemn or attested declaration.
At
best for appellant, in my view, there was an attempt on his part to
adduce evidence. In Silberman and others v Novter Investments
(Pty)
Ltd
1993 (2) SA 850
(WLD) at 852 I to 853 C the learned Cloete J
said:
"Because
of the view which I take of the matter I am prepared to assume, but I
expressly refrain from deciding, that there
was no affidavit before
the court as required by Rule 14(2)(a). The consequence is that
summary judgment could not have been granted.
But it does not follow
from this that the plaintiff did not take a step in the prosecution
of the action. He did. He attempted
to obtain summary judgment. It is
in my view wholly artificial to argue that because the 'affidavit'
forming part of the application
for summary judgment suffered from
such fundamental defect that it amounted to nothing more than an
unsworn statement there was
no application at all."
[21]
The Supreme Court of Appeal has already
provided a response to a restatement of the provisions of subsection
4 of section 60:
"Parroting
the terms of ss(4) of s 60, as he did, does not establish any of the
grounds, without the addition of facts that
add weight to his ipse
dixit"
5
v Mathebula
2010 (1) SACR 55
at
paragraph 15 on page 60.
[22]
In my view, the legislature intends that
where an accused is charged with such a serious offence as the rape
of an infant, and such
accused has no answer to the case against him,
such accused person should remain in custody. In my view, for a
person in the position
of appellant to escape the extra-ordinary and
stringent step of dealing with serious crime, by being incarcerated,
he has a duty
to show that it is reasonably possible that the State
case is very weak, or that he has a good defence. It is the
applicant, in
my view, who seeks an indulgence from the court, who
should make sure that the court he or she asking to make a
pronouncement
in his or her favour, is at least appraised of the facts known to him
or her, which if proved at trial, may stand
as an answer to the
allegations against him or her.
[23]
The Constitution of the Republic of
South Africa, 1996 (Act No. 108 of 1996) amongst others nurtures the
tree of democratic choices.
An applicant is at liberty to pluck the
fruit of his or her democratic choice. If an applicant in the
position of appellant chooses
not to assist the court as regards the
facts, he cannot be heard to complain of the fruits of his democratic
choice, however bitter
it is.
[24]
Appellant was in a position to, and
chose not to, indicate the facts which he seeks to rely on to
indicate his good defence, if
any, or the weaknesses of the State
case, if any.
[25]
In my view, for the reasons set out
herein above, appellant did not adduce evidence which satisfied the
court that exceptional circumstances
exists which in the interests of
justice permits his release.
[26]
The appeal is dismissed.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT