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[2013] ZAFSHC 53
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Keevy v S (A66/2013) [2013] ZAFSHC 53 (2 April 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No : A66/2013
In
the appeal between:
JOHN MARTIN KEEVY
............................................................
Appellant
and
THE STATE
.........................................................................
Respondent
_____________________________________________________
JUDGMENT:
DAFFUE, J
HEARD ON:
25 MARCH 2013
_____________________________________________________
DELIVERED ON:
2 APRIL 2013
_____________________________________________________
INTRODUCTION
[1] Appellant, a 48-year
old South African male, was arrested on 16 December 2012. He,
together with two of his co-accused, unsuccessfully
applied for bail.
On 23 January 2013 their bail application was dismissed by the Chief
Magistrate of Bloemfontein. A fourth co-accused
was granted bail.
[2] Being dissatisfied
with the outcome of the bail application, applicant filed a notice of
appeal on 20 March 2013. By agreement
between the parties, Adv
Abrahams on behalf of the State and Mr Bruwer on behalf of appellant,
the matter was heard by me on Monday,
25 March 2013.
[3] It is common cause
that appellant and his co-accused face two serious charges, the first
count being high treason and the second
conspiracy to engage in a
terrorist activity in contravention of section 14(c) read with
sections 1, 2, 15(1)(a), 15(1)(b)(i),
15(4), 16(1), 17(2) and 18(f)
of the Protection of Constitutional Democracy Against Terrorist and
Related Activities Act, 33 of
2004. High treason is an offence listed
in schedule 5 of the Criminal Procedure Act, 51 of 1977, (“the
CPA”) and the
second offence falls within the ambit of schedule
6 of the CPA.
THE ISSUES
[4] The grounds of appeal
can be summarised as follows, i.e. that the court
a quo
erred
4.1. in applying the case
law pertaining to the safety of the public incorrectly;
4.2. in applying the case
law incorrectly with reference to appellant’s probable evasion
of his trial and he being found to
be a flight risk, without
considering his personal circumstances and family relationships;
4.3 with regard to
possible intimidation of witnesses;
4.4 with regard to
undermining of the criminal law system;
4.5. in accepting the
strength of the State case notwithstanding the fact that the
investigating officer’s affidavit was not
properly deposed to
and could not be accepted as evidence to name but one aspect;
4.6. in neglecting to
accept that appellant’s health was such that he needed medical
treatment and for that purpose should
not be incarcerated;
4.7. in not taking proper
cognisance of the fact that appellant’s business would suffer
severely if he was not released on
bail;
4.8 in not considering
that the trial may last a long time;
4.9. in accepting the
evidence
ex facie
the confession of accused 1 in support of a
finding that appellant is linked to the offences;
4.10. in interpreting the
case law pertaining to exceptional circumstances incorrectly.
[5] I do not intend to
canvass all arguments raised by the parties, either as stated in
their written heads of argument consisting
of 88 and 52 pages
respectively, or their oral argument herein, save to mention that I
have considered these as well as the judgment
of the court
a quo
and the evidence placed before it.
[6] Although Mr Bruwer
strenuously emphasised in his written heads of argument that an
alleged statutory non-compliance occurred
relating to commissioning
of the affidavit of Captain Laux, the investigating officer, placed
before the court
a quo
, I pertinently invited him during his
oral address to make detailed submissions substantiated by case law
in support of such argument,
which he failed to do. In fact, he
conceded, as did his colleagues on behalf of the other three accused
in the court
a quo
, that the affidavit of the investigating
officer was eventually properly deposed to. It should also be
mentioned that appellant
had due regard to that affidavit and filed a
replying affidavit in response thereto.
[7] The other issue
raised in the notice of appeal as well as the written heads of
argument was the court
a
quo’s acceptance of accused 1’s
confession. Certain allegations therein link appellant with the
offences. Again, Mr
Bruwer declined my invitation to address me and
to make appropriate submissions substantiated by case law. He
accepted that hearsay
evidence is allowed in bail applications. This
also applies to evidence contained in a confession by one of the
accused, which
may be taken into consideration against the other
accused during bail proceedings.
In casu
accused 1 deposed to
an affidavit confirming his confession, but suggesting that it was
not freely and voluntarily made.
[8] As mentioned earlier
it is common cause, as was the case in the court
a quo
, that
the offences fall within the ambit of schedules 5 and 6 of the CPA
respectively and that appellant and his co-accused were
saddled with
the onus to prove on a balance of probabilities that they were
entitled to be released on bail.
THE JUDGMENT OF THE
COURT
A QUO
[9] The court
a quo
considered the following to be major grounds on which the
appellant and his co-accused relied to be released on bail, to wit
9.1. their medical
conditions;
9.2. outstanding
artillery and pending investigations by the State;
9.3. possible commission
of further offences;
9.4. the possibility of
evading trial;
9.5. their personal and
family circumstances, emotional state and financial prejudice;
9.6. the
weakness/strength of the State case.
LEGAL PRINCIPLES
[10] Section 60(11)(a) of
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 the
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;”
Section 60(11)(b),
dealing with schedule 5 offences, stipulates 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 the
accused, having
been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that the interests of
justice permits his or her
release.”
[11]
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 may
only 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.
[12] It is for purposes
hereof not necessary to deal with the requirements of section
60(11)(b) which place a less onerous duty
on an accused. 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].
[13] 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) – (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].
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.
[14]
“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
[2012]
ZASCA 79
(unreported SCA case no 162/12, 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 again
Mathebula
,
loc
cit
. 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.”
[15]
An accused who alleges innocence and claims that he will ultimately
be acquitted, must prove his future acquittal on a balance
of
probabilities. See
S
v Mathebula
2010
(1) SACR 55
(SCA) at paras [11] – [13]. 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
,
loc
cit
,
para [12] and
S
v Viljoen
,
2002 (2) SACR 550
(SCA) at para [15]
.
[16] 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]. Compelling
reasons of health and proof that continued detention will seriously
prejudice the accused’s health
may constitute an exceptional
circumstance. See Kruger,
Hiemstra’s Criminal Procedure
,
loose-leave ed at 9-13. However where an accused does not receive
proper medical attention whilst detained, bail is not the proper
remedy as other legal remedies are available. See
S v Van Wyk
2005 (1) SACR 41
(SCA) at 45h-j. In
S v Mokgoje
1999 (1) SACR 223
(NC) the court
inter alia
found that the
fact that the bail applicant’s business was suffering in his
absence did not constitute exceptional circumstances.
Kruger
loc
cit
at 9-13 does not agree with this statement. The author’s
view point is as follows:
“
Proof that
the accused’s business interests will be seriously jeopardised
by continued detention qualifies as an exceptional
circumstance which
can be taken into account (contrary to what was held in S v Mokgoje
1999 (1) SACR 233
(NC).)”
[17] The fact that a bail
appellant 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.
[18] 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 AND JUDGMENT OF THE COURT
A QUO
[19] The starting point
as far as I am concerned is the nature of the offences
in casu
which is totally distinguishable from, for example, an offence such
as murder, which might be seen as a once-off offence committed
by,
for example, a jealous husband. High treason is committed by a person
owing allegiance to the Republic of South Africa who
unlawfully
engages in conduct within or outside the Republic with the intention
of overthrowing the government, coercing the government
by violence
into any action or inaction, violating, threatening or endangering
the existence, independence or security of the Republic
or changing
the constitutional structure of the Republic. See Snyman:
Criminal
Law
, 5th ed, p 309. The hallmark of high treason is not a certain
type of act, but the hostile intent with which an act is committed.
In terms of
section 14(c)
of Act 33 of 2004 any person who conspires
with any other person to commit an offence in terms of the particular
chapter of the
Act, is guilty of an offence. The security of the
State and the public interest are of paramount importance when these
offences
are alleged to have been committed. These illegal activities
have a direct impact on the well-being of the public and the State,
unlike the scenario where an isolated offence such as murder has been
committed.
[20] The confession of
accused 1 directly links appellant to illegal activities and the
offences referred to above. Furthermore
appellant’s e-mail
dated 24 March 2012 is damning and his failure to deal with the
contents of this e-mail in his replying
affidavit in a satisfactory
manner is indicative of his attitude towards the government and its
laws. On his version in reply the
e-mail is his own personal view and
the proposals contained therein are actually nothing but a song of
lamentation -“’n
klaaglied”. This is preposterous
and a blatant lie. I do not intend to deal extensively with the
document, save to mention
a few proposals: (i) all traitors of the
“Boervolk” must be executed by a firing squad; (ii) all
air force bases must
be taken over; (iii) parliament, when in
session, should be taken out and Luthuli house should be demolished;
(iv) all ministerial
residences should be demolished; (v) water and
electricity supply to black townships should be cut; (vi) black
leaders must be
executed (killed). On 19 November 2012 he conducted a
reconnaissance of the venue of the ANC elective conference to be held
at
the University of the Free State in Bloemfontein. He has been
photographed whilst taking pictures of the dining hall at the
University
of the Free State. On his arrest, he was found in
possession of a note in his own handwriting consisting of GPS
co-ordinates of
the venue at the University of the Free State. Having
regard to the affidavit of the investigating officer, these
photographs and
GPS co-ordinates were apparently the products of
appellant’s reconnaissance at the University. This would be
used, on the
information available to the State, to execute the
attack on the ANC leadership which was scheduled for 16 December
2012. Appellant
failed to deal in any manner whatsoever with this
damning evidence. Therefore it is not disputed that the GPS
co-ordinates are
indeed of the venue at the Free State University and
that appellant took the photographs relied upon by the State.
Appellant was
the only person that could explain the purpose of the
pictures and GPS co-ordinates. There might have been an exoneration,
but
in the absence of an explanation these were probably intended to
facilitate, further co-ordinate and execute the attack as alleged
by
the investigating officer. It is clear from the affidavit of the
investigating officer that the accused and in particular accused
1, 2
and 3, which includes appellant, together with others acted in common
purpose to overthrow the government. They do not accept
the
government and its laws.
Ex facie
the available evidence they
were prepared to go as far to eliminate the President, Ministers and
all other people that are regarded
as traitors of the “Boervolk”
to which they belong. The planned attack of 16 December 2012 was not
carried out eventually
due to a lack of resources, but there is a
serious risk that appellant, if released on bail, and his
co-perpetrators will continue
with their plans to overthrow the
government and the commission of the offences of high treason and
conspiracy to the detriment
of the public safety and the government.
The appellant did not show on a balance of probabilities that the
case against him is
non-existent or that he will eventually be
acquitted on the charges. In fact, the effect of the State’s
evidence constitutes
at the least
prima facie
proof of
appellant’s involvement in the charges preferred against him.
The court
a quo’s
finding in this regard cannot be
faulted.
[21] The appellant’s
medical condition does not qualify in itself as a factor that
constitutes exceptional circumstances,
although, if more reliable and
acceptable evidence was placed on record, it might possibly have been
taken into consideration with
other factors to prove exceptional
circumstances. Many people suffer from the same ailments. It is
accepted that he needs medication
on a regular basis and there is no
reason why prescriptive medicine cannot be provided to him while
detained, that is if the State
cannot provide this medicine free of
charge. Notwithstanding the evidence of the medical practitioner,
there is no history of regular
treatment or therapy to which
appellant was subjected for any of his conditions. I would have
expected the doctor to indicate that
appellant was treated on a
regular basis and/or that counselling sessions had been conducted or
therapy provided and that these
had to be continued with in future on
a regular basis and also that it would not be possible whilst
appellant was detained. The
court
a quo
correctly considered
the facts and the case law in coming to its conclusion in respect of
this issue.
[22] Appellant also
relied on the fact that his business will go bankrupt in his absence.
He relied on a contractual obligation
of his close corporation as
proof that his presence was of cardinal importance. However, the
document attached is proof of a contract
entered into for the period
August to September 2012 which was supposed to be finalised already
in September last year. There was
no indication that this contract
was extended or that the close corporation was conducting any
business whatsoever when the bail
application was heard. In any event
and having considered the financial statements of the close
corporation, it is apparent that
it has incurred serious losses for
the 2011 and 2012 financial years and it may in any event be on the
brink of bankruptcy due
to other factors that existed before
appellant’s arrest. No management statements or other financial
information have been
provided for the period from 1 March 2012 to
date of the bail application. On the information before the court
a
quo
, there was thus no proof that the close corporation was
actually involved in business activities at the stage when the
application
was heard. In any event appellant’s wife is a
co-member of the close corporation and also employed by it although
in an administrative
capacity. There is certainly no reason why
appellant could not make provision for the appointment of a manager
to oversee his business
in his temporary absence in co-operation with
his wife. However this is also not on its own an aspect that could be
regarded as
exceptional circumstances. If this was the case, all
business owners and private practitioners such as doctors, advocates
and the
like would be able to rely on the fact that their practices
would be seriously undermined if detained. The court
a quo
cannot
be faulted for its reasoning in this regard.
[23] It may very well be
that the appellant may face a lengthy trial, but this in itself can
never be a factor constituting exceptional
circumstances. It is clear
from the evidence of the investigating officer that a person or
persons within the close-knit right-wing
organisations or movements
leaked information to the South African Police Service. This was
surely a factor considered by the court
a quo
in exercising
its discretion whether or not to grant bail, although not mentioned
in particular. The court
a quo
elected to refer to aspects
such as untraced weapons and poison. Obviously and once appellant is
granted bail, he would be in a
position to do investigations to
ascertain who betrayed him and/or infiltrated the organisations in
order to interfere with such
witnesses and/or the investigation of
the matter and/or the administration of justice in general. It is
evident from the affidavit
of the investigating officer that
witnesses fear for their lives. Bearing in mind appellant’s
proposal in his e-mail that
people who act contrary to the wishes of
the right-wing organisations should be eliminated, it cannot be
regarded as improbable
that appellant might try to undermine the
criminal law system by eliminating witnesses when granted bail. The
offences
in casu
are directed at the government and the public
at large. Appellant and his co-perpetrators, at least based on the
information before
the court
a quo,
was not involved in a
once-off crime, but there intention was to overthrow the government
and to kill the political leaders of this
country. There is no
indication that they, and he in particular, has retracted since
arrest. The court
a quo
correctly relied on the public safety
as a factor in not granting bail. There is indeed a likelihood that
the safety of the public
at large and/or political leaders will be
endangered if appellant is released on bail.
[24] Appellant is not a
born and bred Bloemfonteiner. He is originally from Port Elizabeth
and has been staying in Bloemfontein
from the beginning of 2012 only.
He does not own fixed property in the Free State, although his close
corporation is the owner
of fixed property in Port Elizabeth. Bearing
in mind his allegiance to the so-called right-wing and the close-knit
relationship
amongst members of right-wing organisations, it is
possible that he may try to evade his trial if released on bail,
especially
having regard to the duration of imprisonment he would be
facing if convicted. He was correctly regarded as a flight risk and
there
is no reason to interfere with that conclusion.
[25] Having regard to the
totality of the evidence presented to the court
a quo
, the
case law referred to by the court
a quo
as well as the legal
representatives on behalf of the parties and the case law referred to
herein, I am not convinced that the court
a quo
misdirected it
materially on the facts or the legal principles or that it exercised
its discretion incorrectly by dismissing appellant’s
bail
application. In the notice of appeal as well as in Mr Bruwer’s
argument the court
a quo
was accused of applying the case law
to which it referred from time to time incorrectly and/or that
judgments relied upon did not
support the conclusions reached. I have
carefully considered these submissions, but found them to be without
merit. Consequently
the appeal cannot succeed.
ORDER
[26] 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:
Mr M Bruwer
Hugo Bruwer Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv S.K. Abrahams
VGM Building
123 Westlake Avenue
PRETORIA
/sp