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[2012] ZAGPPHC 367
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Visagie v S (CC91/03) [2012] ZAGPPHC 367 (3 February 2012)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NUMBER: CC91/03
DATE: 3 February
2012
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
GP VISAGIE
APPLICANT
V
THE STATE
RESPONDENT
JUDGMENT
MABUSE
I
:
1. This is an
application by the applicant, Mr. GP Visagie, the accused no. 17 in
what has now become known as "Boeremag Trial",
to be
released on bail pending the finalisation of the said trial. The
applicant, who has been in detention since his arrest in
January
2003, having unsuccessfully brought an application to be released on
bail on 12 July 2004, now brings this fresh bail application
on what
he regards as new grounds. Needless to say the respondent opposes
this application.
2.
It needs to be mentioned though that in applying to be released on
bail, the applicant did not tender
viva
voce
evidence
and in the process subject himself to cross examination but chose
instead, and which is permissible, to tender his testimony
by way of
affidavits.
3. According to his
affidavit the first ground on which he brought the application for
his release on bail was that he underwent
a heart surgery at
Zuid-Afrikaanse Hospital in Pretoria. In support of his ground, he
relied on a certificate, not an affidavit,
by one Dr. MS Stevens, a
cardiographic surgeon whose certificate was attached to the founding
affidavit as annexure "A".
I will deal extensively with
this ground and such other ground as may follow later in this
judgment. He also relied on the following
documentation: a letter
from one Linda Strydom ("Strydom"), a biokineticist; a
report by Dr. Van Wyk ("Van Wyk")
and finally a letter by
Dr. JJ Venter (“Venter"), his family doctor and an
affidavit by his wife, Leonora Visagie.
4. On his discharge
from hospital he was given a booklet containing guidelines on how to
dress, exercise, and behave, among others.
He had been advised to
submit that the exercise facilities in the Pretoria Correctional
Services where he was detained were not
suitable for proper exercise
in that the cell space available to him was not sufficient to enable
him to walk about. According
to the advices he had received, the
applicant required more space than he had in which to walk about, if
he was to avoid blood
clots in his body. He complained that during
winter, his cell can sometimes become unbearably cold and extremely
hot in summer.
5. In terms on the
booklet that he was given on his release from prison, he was required
to follow a particular diet.
6. He was doubtful
whether he would receive the correct medication while he was in
detention.
7. The conditions in
prison were not suitable for the rehabilitation of his health. In
support hereof he contended that many inmates
at the Pretoria
Correctional Services have been infected by, and suffer from,
contagious diseases which might be fatal to him.
He complained
furthermore that, despite the prison doctor's instructions to the
contrary, less than 14 days after his bypass operation
and before his
feet could recover from the operation he was put into feet cuffs as a
consequence of which he experienced severe
pain and swelling.
8. In opposing the
applicant's bail application, the respondent relied on the affidavit
of one Johannes Hendrik Vreugdenburg ("Vreugdenburg"),
Lieutenant Colonel in the South African Police Services and the Chief
Investigation Officer of the trial in which the applicant
is accused,
together with affidavits of other people from the Pretoria
Correctional Services. One of the grounds relied on by the
respondent
was the conserted effort by the applicant's family in assisting him
to evade the police before his arrest in 2003. The
applicant was
arrested in Hatfield Pretoria without any assistance from his family
members. Vreugdenburg has very little confidence
that the applicant,
if released on bail, will attend his trial. His family, according to
him, cannot be relied on to assist the
police if he decamps.
9. The second reason
the respondent opposed the application is that on 31 May 2011, the
applicant, together with a few of his co-accused
in the said trial,
attempted to flee from court during tea break. The details relating
to the said attempt are contained and related
in an affidavit,
annexure 'JHV3' to the answering affidavit by Maphuti Johannes Selepe
("Selepe") and some of his colleagues.
According to him on
31 May 2011 at about llh30 while he was standing at the main entrance
of the court, he saw five suspects of
the "Boeremag" run
towards him. Those suspects are Van Rooyen, Rudi Gouws, Mike Du Toit,
Tom Vorster and Visagie. Visagie
is the applicant in this matter.
They pushed him aside and the said Van Rooyen sprayed him with an eye
blinding substance. Some
of them even tried to take control of his
firearm. He is the one who grabbed the applicant and prevented him
from escaping.
10. The same
allegations about an attempt to escape made by Selepe in his
affidavit were also made by Rebecca Raisibe Rasikwameng,
Daniel
Kialiboga Kokeng and Nicolaas Els, all members of the South African
Police Services who had been posted at GD Court where
the hearing of
the case against the applicant and the others was in progress. Of
course the applicant dealt, in his affidavit,
with allegation that on
31 May 2011 he and others tried to break free. He denied that he
tried to escape and stated that he was
walking up and down between
benches when he noticed what appeared to be a fight between some of
his co-accused and the police.
He was trying to settle the matter. He
stopped at the entrance of the court where someone pushed him hard
from behind and caused
him to fall onto the fighting masses.
Following his fall, his glasses fell and broke and he could not see
any further.
11. The respondent
disputes, in an affidavit by Heinz Peter Kramer ("Kramer"),
the applicant's allegations with regards
to the conditions in prison.
According to him, the applicant has since 2 April 2011 being detained
in what the Correctional Services
Authorities call B-unit, which
consisted of four separate cells, after having been transferred from
C-Max Prison to the local prison.
The applicant and some of his
co-accused occupy the top floor of the said B-unit.
12. The floor
consists of 39 cells. Of these 39 cells, two are allocated to each
inmate. There is also ablution facilities and a
room where a payphone
is located. The passage between the cells is approximately 15 metres
long and 3 metres wide. On the strength
of the court order, the
applicant and some of his co-accused have been separately detained
from other inmates. The respondent admits
that the prison is 136%
over populated but contends that that fact does not affect the
section where the applicant is detained.
Compared to the section
where there is 136% inmates population, the applicant is safely
ensconced in the B-unit cells.
13. When the
applicant does not go to court, his cell is unlocked at 07h00 and
locked at 15h00 and it is locked at 16h30 on the
days he attends
court. The applicant has sufficient time in between 07h00 and 15h00
to move freely in the passages between the
cells.
14. In terms of the
prison regulations, each prisoner is allowed one hour to exercise in
open courtyard. On such days as he has
to attend court, the applicant
is taken to the courtyard in order to exercise at 07h00 on each such
days. He is taken to the courtyard
daily to exercise between llhOO
and 12h00 on days he does not go to court. For his exercises, the
applicant has, and uses, a pilatus
exercise ball and an exercise mat.
The respondent contends that the Prison Services provide the
applicant with ample time to exercise.
15. According to the
respondent, the Pretoria Local Remand Detention Centre houses
approximately 3500 persons for whom special meals
are prepared daily
based on their religion or for medical reasons. Where a specific diet
has been prescribed by a medical practitioner,
the Department of
Correctional Services obliges by separately preparing such inmates'
meals according to the prescription. Indeed
the applicant's meals are
separately prepared in accordance with his prescribed diet.
16. The respondent
also relied on the affidavit of one Louis Christian Marais
("Marais"), the assistant manager of the
health care
services in the Department of Correctional Services and stationed at
Pretoria Local Remand Detention Centre and who
has been in the
service of the said department for thirty-one years. He is in charge
of the medical department at the said detention
centre and as such
has unfettered access to all the detainees' medical files. Through
his occupation he knows the applicant personally.
17. According to
him, since his release at the hospital, the applicant has been under
the medicare of members of his department.
He contended that upon his
arrival from hospital, his department received a prescription from
Dr. CJ Van Wyk. On 12 July 2011 they
received a further prescription
from the same medical practitioner. Consequently his department is
aware that the applicant should,
in terms of the doctor's orders, be
treated especially in so far as his prescriptions dictate. The
department is prepared to treat
the applicant in accordance with such
prescriptions.
18. According to the
policies of the Department of Correctional Services, a detainee may,
at its own expense, and without any compensation
from the department,
consult a private medical practitioner. Should such a detainee not be
able to cover his or her own private
medical fees, he or she is at
liberty to accept medical services offered by the department. The
applicant used and has used such
medical services offered by the
department. He has consulted already with one Dr. Mahlalela who
issued the same prescription as
the one that was issued by Dr. Van
Wyk with a slight difference. The said Marais contends that, in the
place of "Cardura",
which had been prescribed by Dr. Van
Wyk and whose active ingredient is Doxazosin 4mg, Dr Mahlalela has
prescribed "Carzin
XL", which also has the same active
ingredient as "Cardura". The reason he furnished for the
department's choice
was that Doxazosin was a generic of "Cardura"
and that the department did not stock "Cardura".
19. When this
application came before me, Mr. Engelbrecht, counsel for the
applicant, made it clear to the Court that he was not
going to add
anything to the application as contained in the applicant's papers.
Accordingly, in that manner, he regarded the applicant's
applications, as contained at the time, as everything that the
applicant needed to have before the court. He was prepared for a
decision based on what he placed in writing before the court. I will
come back to this point later. It will become clearer when
I deal
with the affidavits filed while I remark that the applicant was
content with the court deciding the matter only on the affidavits
before it.
20. As submitted by
the respondents, in their counsel's heads of argument, the applicant
did not testify orally. This contention
is, in my view, not correct
as the applicant's application is supported by his founding
affidavit. The applicant placed evidence
before court by way of an
affidavit. The procedure or method of placing evidence before court
in bail proceedings by way of affidavits
is part of our law.
21. In the first
place, s. 60(1 l)(b) of the Criminal Procedure Act 51 of 1977 ("the
CPA"), under which the applicant
brought his application,
requires him to "adduce evidence". Therefore he may place
his evidence before court by orally
testifying in his application or
he may, as he has done in this matter adduce his evidence by way of
affidavits. In S. v Pienaar
1992(1) SASV 178(W) at p. 180h and S v De
Kock 1995(1) SACR 299(T) p 309, the courts approved the method of
putting evidence before
court by way of affidavits.
22. The method of
putting evidence before the court by way of affidavits in bail seems
however to be fraught with pitfalls. Firstly,
it has not been
prescribed by the legislature that requires the applicant to adduce
evidence in bail applications. It is also so
because of the phrase
"adduce evidence". No time limits have been set within
which to deliver affidavits and the same
legislation does not
prescribe the kind and number of affidavits that should be filed
before a matter can be heard.
23. The problem, as
it is the case in this matter, is that the applicant either forfeits
any opportunity to reply to the contents
of the respondent's
affidavit or answering affidavits did not deem it useful to do so. I
mean nothing prevented him from filing
a further affidavit in reply
to what is contained in the respondent's opposing affidavit.
24. It is important
to remark that as what is contained in the applicant's affidavit is
evidence, equally so is what is contained
in the respondent's
affidavit or supporting affidavit. In his evidence, the applicant
made very serious allegations against the
Department of Correctional
Services here in Pretoria. The said department was not party to the
application. No attempt was made
by the applicant to serve a copy of
the application on the department so that it could be afforded an
opportunity to respond to
the allegations. It is only through the
initiative of the respondents that this court had before it the
necessary response from
the Department's personnel.
25. The contents of
the applicant's affidavits are now directly contradicted by the
contents of the affidavits filed on behalf of
the respondent. The
contention by the respondent, in particular Vreugdenburg that in the
initial application the State produced
evidence to show that the
applicant disappeared on 16 September 2002 after an unsuccessful
attempt by a group of people to overthrow
the Government remains
unchallenged, so are the State's contention that the applicant not
only had a common purpose with the group
of people who were planning
or had done so, to overthrow the Government but also participated in
the said attempt. According to
Vreugdenburg, the police launched a
nationwide search for the applicant. They could not arrest him as
soon as they had wanted to
because of the role played by his family
in frustrating the efforts. The respondent fears that if the
applicant is granted bail
there will be no guarantee that he will not
disappear again for he has already shown his ability to do so and
that if he does his
family will again assist him to dodge the Court
and the police. It must be recalled that one of the conditions of
bail is that
the accused should present himself at court on days to
which the matter is postponed.
26. Although he has
anticipated the respondent's contention that he and a number of his
co-accused tried to escape, his reasoning
does not seem to be
sufficient, considering that the statements of witnesses to the
attempts to escape speak in one voice. While
he denied that he
participated in the attempt to escape, and state that he noticed what
to him appeared to have been a fight involving
some of his co-accused
and the police, that he tried to intervene by settling the matter and
that he stopped at the entrance of
the court where he was pushed, the
police who were on duty at the time when this incident took place
contradicted him and stated
that he was part of the group that tried
to flee. Fleeing from court shows, in my view, utter disrespect for
the court.
27. As far as the
other points that the applicant raised eg. his conditions of
detention and medical conditions, I take the view
that they have been
ably and fully covered by the Department of Correctional Services. I
have no reason to reject the evidence.
What is dissatisfying about
the applicant's affidavit is that, although he made such serious
allegations against Pretoria Correctional
Services, nowhere did he
mention the efforts that he himself took to get the preferred
treatment from them. Although it seems that
he even consulted Dr.
Mahlalela, this he has not stated or acknowledged in his affidavit.
He has not submitted any other evidence
or expert evidence that the
treatment that he gets from the correctional services is not proper.
1 am satisfied that the applicant
has, contrary to his averments,
sufficient exercise facilities.
28. In the result I
am not satisfied that the applicant has discharged the onus that
rests on him to satisfy the court that the
interests of justice
permit his release on bail. The applicant bears the onus of proving
on a balance of probabilities that if
he is granted bail, the
interest of justice will not be prejudiced by his absconding.
Firstly, on all the evidence before the court
there is a reasonable
possibility that he would decamp and thereby frustrate the
administration of justice. Secondly, in my view,
reasonable and
proper provision for both his prescribed diet, prescribed medical
treatment and medical rehabilitation is made by
the Pretoria
Correctional Services. In the result the application ought to be
dismissed.
I make the following
order:
“
The
applicant's application to be released on bail is refused."
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Applicant’s
Attorneys:
Botes
Attorney
Applicant’s
Counsel: Adv. J Engel
brecht
Respondent’s
Attorneys: Director of Public Prosecution
Respondent's
Counsel: Adv. D van Rensburg
Date
Heard:
25
November 2011
Date
of Judgment:
3
February
2012