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[2012] ZAFSHC 88
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Ramasia v S (A24/2012) [2012] ZAFSHC 88 (3 May 2012)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No. A24/2012
In the appeal between:
MORAKE JOSEPH
RAMAISA
….......................................................
Appellant
and
DIE STAAT
….................................................................................
Respondent
____________________________________________________________
CORAM:
JORDAAN, J
et
MHLAMBI, AJ
____________________________________________________________
JUDGMENT:
MHLAMBI, AJ
____________________________________________________________
HEARD
ON:
16 APRIL 2012
____________________________________________________________
DELIVERED ON:
3 MAY 2012
[1] This is an appeal
against the refusal of the Magistrate to release the Appellant on
bail pending his trial. The Appellant, a
schoolteacher, is charged
with the crime of the murder of his deceased wife.
[2] On the 21 September
2011, the matter was set down for a formal bail application, the
state being of the view that the charge
fell under the ambit of
schedule 6 of the
Criminal Procedure Act, 51 1977
as amended. The
court ruled that it was a schedule 5 offence after hearing evidence.
The court then heard further evidence to determine
whether the
Appellant should be granted bail or not.
[3] On the 30 September
2011, the court refused to grant bail.
Briefly, the Magistrate’s
reasons are as follows:
The threat made by the
appellant against the child;
The offence was very
violent and absolutely gruesome murders were prevalent in the Welkom
area;
The crime has led to a
feeling of shock and anger in the community;
The release of the
appellant can shock the public trust in the justice system;
The two children will be
in a vulnerable position with regard to the appellant and be
manipulated by him to change or try to change
the evidence;
The Appellant’s
inclination to try and commit suicide, even though it came as an
afterthought.
[4] The court
a quo
found the following in favour of the Appellant:-
The Appellant does not
show an inclination to commit Schedule 1 offences;
The Appellant is not a
flight risk;
The investigation is
still not finalised, forensics results are still outstanding, the
finalisation being a time consuming process;
The release of the
Appellant although it would not lead to public violence his safety
could not be guaranteed;
There was no evidence in
support of
section 60
(4) (d): paragraph 10-15 on page 153 of the
record.
[5] Both counsel for the
Appellant and the Respondent are at one that only the evidence of the
first bail application, and not the
second, which was launched after
the appeal was filed, should be considered. I agree with this
approach.
[6] The issues in this
appeal are as follows:
Has the Appellant
convinced the Court on a balance of probabilities that the interest
of justice do not require his detention;
Has the Magistrate
exercised her discretion to grant bail wrongly;
If so, is this Court
sufficiently persuaded that this is so, without imposing its view on
the court
a quo
.
[7]
Section 60(4)
of the
Criminal Procedure Act 51 of 1977
provides as follows:
“
(4) The interests
of justice do not permit the release from detention of an accused
where one or more of the following grounds are
established:
(a) Where there is the
likelihood that the accused, if he or she were released on bail, will
endanger the safety of the public or
any particular person or will
commit a Schedule 1 offence;
(b) where there is the
likelihood that the accused, if he or she were released on bail, will
attempt to evade his or her trial;
or
(c) where there is the
likelihood that the accused, if he or she were released on bail, will
attempt to influence or intimidate
witnesses or to conceal or destroy
evidence; or
(d) where there is the
likelihood that the accused, if he or she were released on bail, will
undermine or jeopardise the objectives
or the proper functioning of
the criminal justice system, including the bail system;
(e) where in exceptional
circumstances there is the likelihood that the release of the accused
will disturb the public order or
undermine the public peace or
security;”
[8]
Section 60(9)
of the
Act provides as follows:
“
60(9) In
considering the question in subsection (4) the court shall decide the
matter by weighing the interests of justice against
the right of the
accused to his or her personal freedom and in particular the
prejudice he or she is likely to suffer if he or
she were to be
detained in custody, taking into account, where applicable, the
following factors, namely—
(a) the period for which
the accused has already been in custody since his or her arrest;
(b) the probable period
of detention until the disposal or conclusion of the trial if the
accused is not released on bail;
(c) the reason for any
delay in the disposal or conclusion of the trial and any fault on the
part of the accused with regard to
such delay;
(d) any financial loss
which the accused may suffer owing to his or her detention;
(e) any impediment to the
preparation of the accused’s defence or any delay in obtaining
legal representation which may be
brought about by the detention of
the accused;
( f ) the state of health
of the accused; or
(g) any other factor
which in the opinion of the court should be taken into account.”
[9] In an appeal against
the refusal of the bail, it should be stressed that no matter what
the Appeal 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.
S v BARBER
1979 (4) SA 218
(D).
[10] On page, 150 and 151
of the judgment the Court says:
“
There is a lot of
things the court can do if the evidence is there, but there is very
little the Court can do if there is no evidence.
Every accused has
the right to come to court and ask the Court to be released, that is
true.
And
the Court even has the right, like the Court did in this case, to
call extra witnesses if the court feels there is not enough
before
court to make a decision!
It is therefore
evident that the Court “felt it did not have enough before it”,
when it decided to call Machitje and
Khanyane to testify in terms of
section 60(3)
of the Act.”
[11] On page 152,
paragraphs 15 – 25, the Court quotes
section 4
, subsection (c)
in toto
and says:
“
.. the court
cannot say that any of those things can happen, there was no evidence
really in that regard.”
[12] The court then
refers to the evidence of Ms Khanyane
“
I
can understand that Ms Khanyane had felt threatened, .......”
.
See page 152 – 153, paragraph 22 – 7. The
court finds that
“
she is a grown up person,
she’s not a child.
That is for the court
the difference between
section 4(a)
and
section 4(c
).
These children are for all intents and purposes, the only witnesses
of what happened that evening and one of them was already
threatened”.
[13] Counsel for
Respondent admitted during argument and in response to the Court’s
question that the learned Magistrate relied
on
section 60(4)(a)
and
(c) of the Act in refusing to grant bail.
[14] On page 101,
paragraph 10 – 15, the prosecutor addresses the Court as
follows:
“
The State case as
well as the defense case, has already been closed but in terms of
section 63
of the
Criminal Procedure Act, the
court felt that it does
not have enough evidence to come to a conclusion and instructed the
state to call upon the domestic violence
clerk, your worship, like I
indicated…”
Her evidence is
captured on page 107 paragraphs 10 – 15.
“
....
So lyk my die hoofdoel dan vir daai aansoek was maar net dat hy moet
ophou vloek, sy was meer bekommerd oor die vloek as die
aanranding?... Ja, edelagbare”.
[15] In the light of the
above, the only inference to be made is that, the evidence of the two
witnesses clarified the doubt that
the Magistrate had in granting the
bail or not.
“
Now when you look
at the
Criminal Procedure Act, at
section 60(c)
, sub
section 4
and
there is 4, 5, 6,7,8,9 and 10, there are a, 4, nearly 5 pages of
things that the Court can take into consideration when the
Court has
to make a decision whether it is in the interest of justice.”
Having quoted sub-section
4(a), the Court goes on
‘
The state does
not have to prove that it will happen, it must just be probable”.
[16] On page 152,
paragraph 8-12,
“
Just
like that, the Court cannot prove to the defence
,
that anything will happen if the accused is released.
The
threat against that child was made
and
for
that reason, and one of the reasons, the court does not think that
the accused should be released, it will not be in the interest
of
justice”.
[17] The evidence
surrounding the threat to the child was led before the Court acted in
terms of
section 60(3)
of the Act. This section is to the effect that
if the court is of the opinion that it does not have reliable or
sufficient evidence
at its disposal or that it lacks certain
important information to reach a decision on the bail application,
the presiding officer
shall order that such information or evidence
be placed before the Court.
[18] It was therefore
unnecessary for the Court to invoke the provisions of
section 60(3)
,
as it could have refused the application merely on the suggested
threat of the child if the court believed in the credibility
and/ or
reliability of the Police witnesses. Therefore, to rely on the latter
factor to refuse to grant bail is very opportunistic.
[19] It is quite evident
that the Court misdirected itself and failed to grasp the import of
section 60
of the Act. The
“
five pages of
things that the Court can take into consideration”
must
be read and interpreted correctly in order to make a proper analysis
and evaluation of the evidence.
[20] It is trite law that
bail has to be granted except where this was not in the interest of
justice. See
S v SWANEPOEL
1999 (1) SACR 311.
Section
60(4)
sets out the grounds that would make an accused ineligible to
be released on bail.
Sections 60(5)
;
60
(6);
60
(7);
60
(8) and
60
(8)(A) merely set out the factors which a Court considers whether
the grounds in subsections 4(a); 4(b); 4(c); 4(d) and 4(e) are
established.
[21] The Court in terms
of
section 60
(9), in considering the question in subsection (4)
shall decide the matter by weighing the interests of justice against
the right
of the accused to his personal freedom and in particular
the prejudice he is likely to suffer if he were to be detained in
custody,
taking into account the factors set out thereunder. These
factors are clearly in favour of the appellant. The court failed to
apply
its mind as to the contents of this subsection and accordingly
misdirected itself. On page 153 paragraph 18-25, the Court quotes
section 60(4)
(e) in an attempt to justify the evidence of the woman
from the ANC Women’s League. This attempt is futile as this
subsection
has no application in the present case and as she had also
found. It refers to exceptional circumstances, which are not
applicable
here. Consequently calling this witness was unnecessary.
[22] It is clear to me
that the Magistrate is “clutching at straws” in order to
arrive at the conclusion she did. It
is further evident that on her
dealing with
section 60
of the Act, that she had embarked on a system
of elimination of the grounds and factors which might or might not be
applicable.
This selective reasoning led her to quoting and
interpreting the sections out of context and incorrectly.
[23] The word “probable”
in
section 60(4)
above is defined as
“
capable
of being proved, demonstrable, moveable, having the appearance that
may reasonably be expected to happen”.
“
Likely” is
defined as “seeming as if it would happen or prove to be as
stated”. See the shorter Oxford English
Dictionary on
Historical Principles: Prepared by William Little: 3
rd
Edition: Volumes 1 and 2.
[24] I opine that the
cross – examination of the appellant, despite its aggressive
nature, did not reflect badly or portray
him in a bad light. He
concedes that he initiated the interdict to stay the burial as he
wanted to attend the funeral and not manipulate
the system.
[25] What stands out
clearly in his evidence is his denial that he will manipulate the
children, his concern for the welfare of
the children: their
accommodation, transport to school, education and safety.
[26] On page 51,
paragraph 5 – 10, the Prosecutor asks:
“
Now, I, you know I
liked your expression at one stage when you testified, after I
commenced my cross – examination, you said:
“It is in the
interest if my children to be at school”, is that correct? You
said that? ..... Yes, I did.”
[27] It is interesting to
note that the prosecutor never pursued this matter any further. I am
therefore convinced that the Magistrate
never considered the
provisions of
section 60(9)
in coming to her conclusion. It is also
evident that it was opportunistic to rely on the untested evidence of
the police in respect
of the threat to the minor child, as she was in
doubt as to her decision even after the State and the accused closed
their cases.
[28] What remains to
mention is that from the onset, the Appellant never denied to the
Police that he could be responsible for her
death. His legal
representative advised the Court (despite their refusing to answer
questions about the “merits”) at
the inception of the
bail application, that their defense was self - defense. It is clear
to me that the evidence on record militates
against the Appellant
planning or wishing harm to his children.
[29] I am therefore of
the considered view that the Magistrate overlooked some important
aspects in this matter, justifying a Court
on appeal to interfere
with that decision. See
S v BRANCO
2002 (1) SACR 531.
ORDER
[30] Accordingly, I make
the following order:
30.1 The appeal is
allowed and the Magistrate’s order refusing bail is set aside.
30.2 Bail is fixed in the
amount of R10 000.00
30.3 The appellant shall
refrain from communicating with any witnesses.
30.4 The appellant shall
not leave the area of Riebeeckstad, Welkom without the prior leave of
the investigation officer.
_________________
J. J. MHLAMBI, AJ
I concur.
__________________
A. F. JORDAAN, J
On behalf of the
appellant: Adv. I J Nel
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of the
respondent:
Adv. M Strauss
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb