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[2012] ZAGPPHC 365
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J.M.D and Another v S (A818/2012) [2012] ZAGPPHC 365 (4 December 2012)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
A818/2012
DATE: 4 December
2012
In the matter
between:
J M
D[...]
..........................................................................................................................
FIRST
APPELLANT
P K
SHONGWANE
...................................................................................................
SECOND
APPELLANT
and
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
KUBUSHI, J
[1] This is an
appeal against the judgment granted on 13 September 2012 by the
regional magistrate, Pretoria in refusing to admit
the appellants to
bail.
[2] The appellants
are facing two counts of robbery with aggravating circumstances and
one charge of robbery. In respect of robbery
with aggravating
circumstances it is alleged that two of the complainants were
threatened with a knife. Two of the complainants
are students and
they were in their school uniform when they were so robbed. The
appellants were identified firstly by the blue
USV motor vehicle
which they used as their getaway motor vehicle. One of the
complainants identified the appellants as they walked
into the charge
office shortly after their arrest. Each of the appellants was further
identified by the complainants at an identification
parade.
[3]
At the hearing of the bail application the state tendered
viva
voce
evidence
of the investigating officer, Detective Constable Danavan Naicker.
His evidence in short is to the effect that the appellants
may
interfere with the witnesses and the investigation because the
appellants know which school two of the complainants attend
as they
were wearing school uniforms on the day they were robbed. He also
could not confirm the addresses of the appellants because
the people
at the addresse provided by the 1
st
appellant did not know him and he could not find the 2
nd
appellant’s girlfriend at the address which 2
nd
appellant said he resided with the girlfriend.
[4] The appellants
were represented by Ms Els. They did not testify and submitted
affidavits in court. According to the 1
st
appellant’s
affidavit he is twenty seven years old, unmarried and a biological
father of a one year old boy and his girlfriend
is pregnant and is to
give birth in October 2012, he is responsible for the maintenance of
the girlfriend and the child; he resides
at 34 S[...] Street, A[...]
- this is his girlfriend’s place and he has been living there
for four years; before his arrest
he was working at UNB United
Brewery for four months earning a salary of R1 600 every second week;
he does not have a passport
and does not have family or business
interests outside South Africa; he is HIV positive since 2005 and
receives treatment from
Kalafong Hospital and since his arrest he has
not received treatment; he does not have previous convictions,
pending cases or warrants
for his arrest; all the complainants in
this case are unknown to him and undertakes not to interfere with
them; he will comply
with bail condition to report at the nearest
police station in Atteridgeville and will be able to pay an amount of
R1 000 for bail.
[5] According to the
2
nd
appellant’s affidavit he is a single 29 year old
man; before his arrest he was working as a private taxi driver for Mr
Moses
Manaku for the past three years earning a salary of R700 per
week; he does not have a passport and does not have family or
business
interests outside South Africa; he is a healthy person; he
does not have previous convictions, pending cases or warrants for his
arrest; all the complainants in this case are unknown to him and he
undertakes not to interfere with them; he will comply with
bail
condition to report at the nearest police station in Atteridgeville
and will be able to pay an amount of R1 000 for bail.
[6] The court a
quo’s grounds for refusing to admit the appellants to bail were
premised on the fact that the state had a
strong case against the
appellants. It considered the evidence of the investigating officer
tendered at the hearing of the bail
application and decided that it
would be in the interest of justice that the appellants not be
admitted to bail. It also considered
the personal circumstances of
the appellants and found that nothing turned on them.
[7]
When addressing me at the appeal hearing the appellants’
counsel contended that both appellants have made a case to be
released on bail and referred me to the judgment in
S
v BENNETT
1976
(3) SA 652
(C), which held that there must be a real risk to
interfere with witnesses and not that they may. According to counsel,
the state’s
case is based on the likelihood that the appellants
may interfere with witnesses and that there is a strong case against
both appellants.
He argued that since the charges against the
appellants were Schedule 1 offences the onus was on the state to
prove that it is
in the interest of justice that the appellants not
be released and the state failed to do so as such the appellants must
be released.
He submitted that should the court decide to release the
appellants his instructions is that an amount of R2 000 in respect of
each appellant will be raised to pay the bail. And that a bail
condition be attached that the appellants report daily at the
Atteridgeville
Police Station.
[8] The respondent’s
counsel on the other hand argued that a court of appeal can only
interfere if it is satisfied that the
trial court is clearly wrong in
its refusal to grant the appellants bail. However, in this instance
the trial court did not err.
The
onus
rested
on the state and the state has discharged that
onus
through
the evidence of the investigating officer, which is undisputed.
[9] According to
her, the appellant’s addresses as provided by them to the
investigating officer could not be confirmed, both
appellants had
told the investigating officer that they were unemployed and the
medical condition of the 1
st
appellant was also not
confirmed. Her submission was that since the appellants did not lead
evidence at the bail hearing, they
failed to confirm their addresses
and their employment and the investigating officer’s evidence
is therefore unchallenged.
Her contention is that based on the
totality of the evidence the trial court found no special
circumstances and rightly so, refused
bail.
[10] A further
submission was that the appellants are facing a minimum sentence of
15 years and this increases the risk of absconding.
There is also a
strong case against the appellants in that: they were found in
possession of the cell phones; they were found in
the motor vehicle
in which the complainants said they made their getaway; they were
identified immediately after the commission
of the offences. They
used a dangerous weapon to threaten the complainants and they were
brazen, the trial court was therefore
correct not to release them.
[11] She conceded
that it is indeed mere speculation that the appellants may interfere
with the witnesses. She, however, argued
that a possibility that they
may interfere with the witnesses exists because the crimes were
committed within a 3km distance. And
that, taken cumulatively, all
the facts of the case are enough to deny the appellants’ bail.
[12] Section 65 (4)
of the Criminal Procedure Act No 51 of 1977 (the Act) provides that a
court of appeal may not set aside the
decision of a lower court
unless it is satisfied that the lower court was wrong, in which event
that court shall give a decision
which in its opinion the lower court
should have given.
[13] In terms of
section 60 of the Act before granting bail, a court hearing the bail
application must be satisfied that the interest
of justice so permit.
The grounds that should be established in order for the court to be
satisfied that it is in the interest
of justice not to release the
accused are set out is section 60 (4) of the Act. Some of these
grounds are: the likelihood that
the accused will abscond and the
likelihood that the accused will interfere with witnesses.
[14]
A court cannot find that the refusal of bail is in the interest of
justice merely because there is a risk or possibility that
one or
more of the consequences mentioned in section 60 (4) will result. The
court must not grope in the dark and speculate; a
finding on the
probabilities must be made. Unless it can be found that one or more
of the consequences will probably occur, detention
of the accused is
not in the interest of justice and the accused should be released.
S
vSWANEPOEL
1999
(1) SACR 311
(O).
[15]
In this instance, when refusing to grant the appellants bail, the
court
a quo
based
its reasoning firstly, on the strength of the state’s case
against the appellants, which is a ground taken into account
when
considering the likelihood that an accused might abscond. When
addressing me in court, the state’s counsel submitted
that the
fact that the appellants are facing two possible sentences of 15 year
imprisonment should also be considered as a contributory
ground for
the likelihood of the appellants absconding.
[16] The strength of
a case against an accused and the nature and gravity of punishment
which is likely to be imposed are some of
the grounds which in terms
of section 60 (6) of the Act, a court should consider in determining
whether there is a likelihood of
the appellants evading trial.
[17]
The court a
quo
considered,
correctly so in my view, the following factors in coming to the
conclusion that the state has a strong case against
the appellants:
that the appellants were arrested shortly after one of the offences
was committed; one of the complainant whom
they robbed on the day
they were arrested, was able to identify them as they walked in the
charge office immediately after their
arrest whilst she was opening a
case against them, her cell phone was also found in their possession;
they were arrested in the
motor vehicle which the complainants had
described as their getaway motor vehicle and each of the appellants
was also positively
identified at an identification parade. These
factors do strength the state’s case and raise a possibility of
conviction
and when coupled with the imminent sentence of a long term
of imprisonment, two 15 year terms of imprisonment, they make the
appellants
possible flight risks.
[18]
The personal circumstances of the appellants, as the court a
quo
rightly
found, are of no assistance to the appellants. Of great concern to me
is that the investigating officer could not confirm
the address of
the 1
st
appellant and was not able to contact the 2
nd
appellant’s girlfriend with whom 2
nd
appellant alleged to be residing with. They informed the
investigating officer that they were not employed. If they had given
the investigating officer the addresses of where they worked as
alleged in their respective affidavits, he perhaps could have traced
and confirmed the addresses. Based on the aforesaid, my view is that
there are strong probabilities that the appellants may not
stand
trial.
[19]
Secondly, the court a
quo
took
into account the likelihood of the appellants interfering with the
witnesses. Although the court a
quo
did
not express itself on the evidence of the investigating officer, it
however did consider it and it is on the basis of this evidence
that
it decided that it would not be in the interest of justice to grant
bail to the appellants. The appellant’s counsel,
however, is of
the view that the evidence of the investigating officer, in so far as
the appellants interfering with the witnesses
is speculative and
should not carry any weight. The state’s counsel conceded this
point but however, submitted that this
evidence must not be
considered in isolation but cumulatively with the other evidence
before this court. I agree with her submission.
[20] My view is
that, when all the evidence is considered cumulatively, probabilities
are that the appellants may interfere with
the witnesses. The
strength of the state’s case, the possibility of a long prison
term if found guilty are to me grounds
enough for the appellants to
interfere with the witnesses.
[21]
In the premises I find that the court a
quo
was
not wrong in coming to the conclusion that it will not be in the
interest of justice to admit the appellants to bail.
[22] The appeal is
therefore dismissed.
E.M. KUBUSHI
JUDGE OF THE HIGH
COURT
On behalf of the
appellant: Mr Z Ntsibande
Instructed by:
ZAKHELE NTSIBANDE
ATTORNEYS
8465 Motheberebe
Street, Extension 6
Atteridgeville West
PRETORIA
On behalf of the
respondent: Adv. Kersten - Smit
Instructed by:
DIRECTOR OF
PUBLIC
PROSECUTIONS
Presidential
Building
28 Church Square
PRETORIA