About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2013
>>
[2013] ZANCHC 41
|
|
Putswane and Another v S (CA &R 51/13) [2013] ZANCHC 41 (6 September 2013)
1
Reportable
YES / NO
Circulate
to Judges YES / NO
Circulate
to Magistrates YES / NO
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
CASE NO: CA &R 51/13
In the matter between:
KGOTSO VICTOR PUTSWANE
............................................................
1
ST
APPELLANT
AND
JOHN MOTLHAGENG KHUTLEDI
.......................................................
2
ND
APPELLANT
V
THE STATE
..............................................................................................
RESPONDENT
___________________________________________________________________
Date of hearing:22 August
2013
Date of judgment:06
September 2013
JUDGMENT:
BAIL APPEAL
PHATSHOANE J
Mr Kgotso Victor
Putswane and Mr John Motlhageng Khutledi, the first and the second
appellants, applied for bail on 31 May 2013
which was refused on the
same date by Mr Scorgie in the Magistrates’ Court for the
District of Barkly West.They face a
charge of robbery with
aggravating circumstances. It is alleged that on or about 24 May
2013 at or near Barkly West they unlawfully
and intentionally
assaulted Mr Motsemoleele Mogongwa and took his R17 000 with
force. They are before this Court on appeal
against the refusal of
the Magistrate to admit them tobail.
What appears to be a
facsimile record of appeal initially placed before me was
incomplete. For example, the exhibits that were
submitted in
evidence during the bail proceedings and the indictmentwere missing
from the record. On 13 August 2013 I directed
the parties to file a
complete record. It was only on the date of the hearing, 22 August
2013 that the record was complete.It
is remarkable that it took two
months to put together no less than 50 pages of the record of
appeal.
The first appellant has
a previous conviction of possession of stolen goods in contravention
of s 36 of the General Law Amendment
Act, 62 of 1955. The second
appellant has no previous conviction. At the court
a quo
the
defence and the state agreed that the first appellant faced a
schedule 5 offence while the second appellant’s offence,
it
was said, fell under schedule 1.
On 27 August 2013,
having heard argument, I directed both parties to file supplementary
heads on the question of whether Robbery
with Aggravating
Circumstances as reflected in the indictment is a schedule 6 offence
or not; if not whether the Court should
be bound by the said
agreement.
Ms Mabaso, for the
state, explained in her supplementary heads that the appellants were
not charged with a schedule 6 offence.
She stated that the charge
sheet was defective in that it did not specify the nature of the
aggravating circumstances involved.
She further intimated that there
was no evidence that the complainant sustained serious or grievous
bodily harm or that there
was any threat to inflict grievous bodily
harm. Mr Kgalo, for the appellants, did not file supplementary
heads.
Robbery,
involving,
inter alia
,
the infliction of grievous bodily harm by an accused or any of the
co-perpetrators or participants falls within the ambit of
schedule 6
of the Criminal Procedure Act, 55 of 1977 (the Act). In this case it
is alleged that the appellants used tear-gas
to subdue the
complainant which resulted in his eyes being badly burned.Tear-gas
is defined as any substance, whether solid,
liquid, vapour or gas,
or any combination of such substances used or intended to be used as
a lachrymator
1
.
Aggravating
circumstances', in relation torobbery or attempted robbery,
means (i) the wielding of a fire-arm or any other
dangerous
weapon; (ii)the infliction of grievous bodily harm; or (iii) a
threat to inflict grievous bodily harm,by the offender
or an
accomplice on the occasion when the offence is committed, whether
before or during or after the commission of the offence
2
.
In terms of the Dangerous Weapons
Act 71 of 1968 'dangerous weapon' means any object, other than
a firearm, which is likely
to cause serious bodily injury if it were
used to commit an assault;
In
S v Dhlamini and
Another
1974 (1) SA 90
(A) at 94A Holmes JA remarked:
“
The
requirement of grievous bodily harm, in the definition of
aggravatingcircumstances, supra, goes beyond the offence of robbery,
in which mere violence (or threat thereof) is sufficient.
Furthermore, in robbery the violence must precede and induce the
taking.”
Without
enquiring, the Magistrate simply associated himself with the
proposition advanced by counsel on the classification of
the
offences alleged to have beenperpetrated by the appellants.It is now
settled that the role of a judicial officer in bail
proceedings is
not that of a spectator or umpire. It is imperative that charges
against an accused person be formulated property
at the onset for
the accurate determination of the procedural aspects.
3
For
the purposes of this appeal I will accept that the first appellant
facesa schedule 5 offence while for the second appellant
a schedule
1 offence.
In
S v Mohamed
1977 (2) SA 531
(A) at 542A-B Trollip JA stated the following:
“
To sum up:
the appeal by an aggrieved accused under (precursor) s 97 of the Code
to a Superior Court against a decision of a Magistrate
in respect of
his application to be released on bail, is an appeal in the wide
sense, that is, it is a complete re-hearing and
re-adjudication by
the Superior Court of the merits of the application, with or without
additional information, in which it can,
in the exercise of its own
discretion, make such order as to it seems just; an appeal against
its decision lies to this Court under
ss21(1), (2), and (3) of the
Supreme Court Act, but only with the leave of the Court a quo, and,
if it is refused, with the leave
of this Court; on such an appeal
this Court will only interfere if the Court a quo committed such an
irregularity or misdirection
or exercised its discretion so
unreasonably or improperly as to vitiate its decision.”
The appellants submitted
no less than 10 grounds of appeal against the finding of the
Magistrate. To condense them:They contended
that the Magistrate
erred in finding that it was in the interest of justice to deny them
bail;that the Magistrate did not refer
to their personal
circumstances;that he erred in finding that the state had a strong
case against them and in having put much
emphasis on the
circumstances in which they were arrested. It was further contended
that the Magistrate wrongly relied on the
evidence of the
investigating officer that there was a pending case of housebreaking
with intent to steal and theft against the
appellants and that of
theft of a motor vehicle. It was argued by the appellants that they
stated in their affidavits in support
of the bail application that
they were only charged of malicious damage to property. Mr
Kgalosubmitted that the latter charge
is a continuation of the main
charge.In any event, the appellants have not appeared before Court
for housebreaking and theft
or malicious damage to property, the
argument went.
During their bail
hearing the appellants handed in affidavits in support of their
applications. The first appellant is 25 years
old, unmarried father
of two children aged three and four years old. He is self-employed
as a car washer and earns R250.00 weekly
which he spends on his
family. He stays with his grandparents. The second appellant is also
aged 25. He is an unmarried father
of a two year old child. He
intimated that he is a taxi driver employed on a casual basis and
earning R400 per week. He supports
his family with his earnings. He
stood to lose his job or forfeit his salary should he not be
released on bail.
For the state, the
investigating officer, W/O Frank Titus Mouton, testified that the
appellants had allegedly robbed a 68 year
old man of an amount of
R17 000.00. The complainant identified his assailants even
though no formal identification parade
was held. There was
information that there had been fire-arms in the vehicle which the
appellants drove in but upon a search
none were found. The
complainant’s money was also not found. The appellants were
arrested on 24 May 2013, the same date
of the robbery. Prior to
their arrest some hospital security personnel are said to have
recorded the registration numbers of
the vehicle that they drove and
raised alarm with the police. The police spotted a vehicle driving
at high speed passing them.
They chased after it from Barkly West to
Warrenton where the appellants abandoned their vehicle and fled on
foot. The record
is silent on whether the vehicle that the
appellants drove bears the same registration numbers recorded by the
security personnel.
The appellants were arrested at the house they
broke into and used as a hideout. The house does not belong to them.
W/O Mouton intimated
that a case of house-breaking and theft was opened against the
appellants in Warrenton. Under cross-examination
he explained that
the charge was later changed to malicious damage to property. He
stated that there was a further investigation
conducted that the
owner of the vehicle (which the appellants drove)has presseda charge
of theft of a motor vehicle against them.
The vehicle was attached
on the same day of the arrest. According to Mountonthe first
appellant’s finger prints were lifted
from this vehicle.
Mountonfurther explained that the appellants operate like a
syndicate. Their
modus operadi
is to randomly commit this type
of crimeat different places,although they have not been convicted.
The crime is prevalent in Barkley
West and in the neighbouring
areas. He intimated that should the appellants not be held in
detention, pending their trial, the
public’s safety is at risk
and that there were three more suspects on the run who are still to
be joined in the charge
sheet.
The Magistrate did not
deal comprehensively with the evidence. In his brief reasons for
refusing bail he came to a conclusion
that the state had a strong
case against the appellants. That in view of the fact that the
appellants attempted to flee from
the police there were strong
indications that they will evade their trial. He puts it thus:
“
Ek is
tevrededatdaar op hierdie stadium ‘n redelikesterksaak teen die
beskuldigde is. Daar is danook die
getuienisdatdaarverderebeskuldigdeswaarskynlikgevoegsal
word. Die
ondersoek is in die beginstadium en dit is duidelik,dit is verlede
week vrydaggepleeg.
Soosek reeds gesê het, ek is
tevrededatdaar op hierdie stadium ‘n sterksaak teen die
beskuldigde is; datek is ookoortuigdat
die
wysewaarophulleprobeerwegkom het van die polisiedeurwegte jag
virhulle, by ‘n huis in tebreek, daartegaanwegkruipvir
die
polisie, is vir my ‘n aanduidingdatditniemense is
wathulleverhoorgaanstaannie.
Ek is van meningdatdit in belang van
die regspleging is dat die beskuldigdesdanaangehou word totdat die
saaksynormale loop geneem
het. Beide se aansoekomborg word dan van
die hand gewys.”
In
S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at 78f-hpara 49 the Court made the following pronouncement:
“
[49]……Subsections
(4), (9) and (10) of s 60 should therefore be read as requiring of a
court hearing a bail application
to do what courts have always had to
do, namely to bring a reasoned and balanced judgment to bear in an
evaluation, where the liberty
interests of the arrestee aregiven the
full value accorded by the Constitution. In this regard it is as well
to remember that s
35(1)(f) itself places a limitation on the rights
of liberty, dignity and freedom of movement of the individual. In
making the
evaluation, the arrestee therefore does not have a totally
untrammelled right to be set free. More pertinently than in the past,
a court is now obliged by s 60(2)(c), (3) and (10) to play a
proactive role and is helped by ss (4) to (9) to apply its mind to
a
whole panoply of factors potentially in favour of or against the
grant of bail.”
The
appellants had to satisfy the Court
t
hat
the interests of justice permit their release on bail. An accused on
a Sch 5 charge, while obliged to adduce evidence, need
only satisfy
the court that 'the interests of justice' permit his or her release.
See
S v Dlamini; S v Dladla
and Others; S v Joubert; S v Schietekat
(supra)
at 84bpara 60. The appellants did not testify during their bail
hearing. In my view it was not sufficient for the appellants
to
simply aver in their affidavits:
“
I
shall in no way attempt to evade my trial or any court appearance in
this regard. I shall in no way temper or attempt to tamper
with any
of witnesses by influencing or intimidating them or hide or destroy
any evidence. There is no probability that should
I be released on
bail I shall undermine the goal or the proper functioning of the
criminal law system. I will further plead not
guilty on this
offence.”
Section 60(4)(b)
provides thatthe interests of justice do not permit the release from
detention of an accused,
inter alia
, where there is the
likelihood that the accused, if he or she were released on bail,
will attempt to evade his or her trial.
Section 60(6) enumerates
factors which, where applicable, the Court is to take into account
in considering whether the ground
in ss (4)(b) has been
established, this includes, amongst others: the emotional, family,
community or occupational ties
of the accused to the place at which
he or she is to be tried; the assets held by the accused and where
such assets are situated;
the means, and travel documents held by
the accused, which may enable him or her to leave the country; the
nature and the gravity
of the charge on which the accused is to be
tried;and the strength of the case against the accused and the
incentive that he
or she may in consequence have to attempt to evade
his or her trial. Some of these factors were traversed during the
hearing
and in argument.
In
S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat
(supra) the Court
states at 79d-gpara 53:
“
[53]…But
s 35(1)(f) neither expressly nor impliedly requires that in
considering whether the interests of justice permit
the release of
that detainee pending trial, only trial-related factors are to be
taken into account. The broad policy considerations
contemplated by
the 'interests of justice' test, in that context, can legitimately
include the risk that the detainee will endanger
a particular
individual or the public at large. Less obviously, but nonetheless
constitutionally acceptable, a risk that the detainee
will commit a
fairly serious offence can be taken into account. The important
proviso throughout is that there has to be alikelihood,
ie a
probability, that such risk will materialise. A possibility or
suspicion will not suffice. At the same time, a finding that
there is
indeed such a likelihood is no more than a factor, to be weighed with
all others, in deciding what the interests of justice
are. That is
not constitutionally offensive. Nor does it resemble detention
without trial, the reprehensible institution really
targeted when one
speaks of preventive detention. Absent a proper basis for the
original arrest, it will be set aside. But if there
was a proper
cause, one cannot justify release solely on the absence of
trial-related grounds.”
It appears from the
evidence of the W/O Mouton that the probable risk that members of
the public may be robbed is forever present
should the appellants
not be held in detention pending their trial. In his
evidence-in-chief W/O Mouton merely testified that
the complainant
identified the appellants. What perhaps evokes debate is the manner
in which the identification of the appellants
was conducted. This is
what appears on record during W/O Mouton’s cross-examination:
“
When
you say he identified them what do you mean------Ek het die
beskuldigdesgenaderom ‘n ID parade temaak. Toe het die
beskuldigde
1 vir my gesê maar die klaer het homdanklaargesien,
hoe kanhy ‘n ID parade gaanstaan en hy het my verduidelik hoe
die
omstandighede was, hoe hygekry was. Ek het toe nabeskuldigde 2
gegaanomtevra. Hy het my ookgesê hoe die omstandighede was
waar
die person homgesien het.
Were they identified as my clients
instructed me that they were arrested and taken to this complainant
and said these are the two
people who robbed you and he said yes, is
that the parade?--- Die inligting tot my
beskikkingisbeskuldigdenommer 1 was in ‘n
kantoorwaaronsaltydvingerafdrukkeneem.
Alone?---Nee, hy was saam met
konstabelOliphant. En toe is die klaerblykbaarnahom toe gebring en
toe gevradit is die man watonsgearresteer
het, is dithywatjougeroof
het. Ek het dit met my kapteinopgeneem. Beskuldigdenommer 2 was
direkna die selle toe geneemnabewering
en daar is sy ’14-A’
geneemnahom toe deur dink ekMokhetla het hygesê of iemand,
waarop die klaer toe ooksaam
met homgegaan het en homgesien het.
In the cells?---dit is korrek.
Were there people there?---
Ekweetnie.
Hy het net vir my gesêdit is hoe ditgebeur
.”
It is not clear whether
Mouton’s testimony on how the complainant identified the
appellants is based on the information
he obtained from the
appellants or from the police officers who were present when the
informal identification was made. After
all, it was for the
appellants to satisfy the Court that the state had no case against
them.
Even though the
Magistrate did not refer to the appellants’ personal
circumstances in his judgment it did not follow that
he did not
consider their circumstances. In
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 678, amongst the principles which should
guide an Appellate Court in an appeal purely upon fact, the Court
stated:
“
An appellate
court should not seek anxiously to discover reasons adverse to the
conclusions of the trial Judge. No judgment can
ever be perfect and
all-embracing, and it does not necessarily follow that, because
something has not been mentioned, therefore
it has not been
considered.”
Much was also made that
the Magistrate wrongly relied on the evidence of the investigating
officer that the appellants had a pending
case of housebreaking and
theft of a motor vehicle when they had been charged with malicious
damage to property and have not
made any appearance in Court. I fail
to see the relevance of the argument. Nevertheless, it suffices to
say that nowhere in his
reasons did the Magistrate refer to any case
that is or was pending against the appellants. In my view, breaking
into someone’s
house is not mere malicious damage to property
but it is at least housebreaking with the intent to commit an
offence unknown
to the prosecutor, including trespassing.
In
S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at 63e-64a para11 the Court held:
“
[11]…In
a bail application the enquiry is not really concerned with the
question of guilt. That is the task of the trial
court. The court
hearing the bail application is concerned with the question of
possible guilt only to the extent that it may bear
on where the
interests of justice lie in regard to bail. The focus at the bail
stage is to decide whether the interests of justice
permit the
release of the accused pending trial; and that entails, in the main,
protecting the investigation and prosecution of
the case against
hindrance.”
The fact that the
appellants decamped from the police on their arrest cannot be
overlooked. There is no explanation in their affidavits
why they
were driving at a high speed and fleeing from the police from Barkly
West to Warrenton. The appellants were not charged
of escaping from
lawful custody. Mr Kgalo was at pains explainingthat they were not
under any detention and therefore it cannot
be said that they fled
from the police. Counsel’s denial from the bar that the
appellants fled the scene is not evidence.The
appellants do not have
any emotional, family, community or occupational ties inBarkly West
where they are to be tried. Their
affidavits do not state what the
appellants were doing in Barkly West whereas they reside and work in
Jouberton, Klerksdorp,
North West Province. As for the first
appellant, he has a previous conviction which involves possession of
stolen property.
In
S
v Barber
1979(4)
SA 218 (D) at 220 E-G the Court pronounced:
“
It is well
known that the powers of this Court are largely limited where the
matter comes before it on appeal and not as a substantive
application
for bail. 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.
I think it should be stressed that, no matter
what this Court’s
own views are, the real question is whether it can be said that the
Magistrate who had the discretion to
grant bail exercised that
discretion wrongly.”
See also the judgment of
this Court in
S v Nteeo
2004 (1) SACR 79
(NC) 82g-83cpara 8.
It can hardly be said
that the Magistrate erred in his inevitable conclusion that a strong
likelihood existed that the appellants
would,if released on
bail,attempt to evade their trial.The denial of bail on this ground
is manifestly in the interest of justice.Even
though the
Magistrate’s judgment is not a model one I am not swayed that
he
exercised his discretionwrongly.
Theupshot
of this is that the appeal must fail.
ORDER
In the result the
following order is made:
The appeal is
dismissed.
____________________________
MV PHATSHOANE
JUDGE
NORTHERN CAPE HIGH COURT
Appearance
for the appellants: Adv T Kgalo
Instructed
byMjila& Partners
Appearance
for respondent: Adv J Mabaso
Instructed
by Director of Public Prosecutions
1
Section
1 of the Tear-Gas Act 16 of 1964
2
Section
1
of the
Criminal Procedure Act 51 of 1977
3
A
Guide to Bail Applications, MT Mokoena, JUTA, First edition at page
90.