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2012
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[2012] ZANCHC 26
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S v Greef (CA&R 55/10) [2012] ZANCHC 26 (1 June 2012)
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 55/10
HEARD: 23/05/2012
DELIVERED: 01/06/2012
In the matter between:
MILVERTON RAYNOLD GREEF
…...................................................
APPLICANT
and
STATE
…...............................................................................
RESPONDENT
JUDGMENT
HUGHES-MADONDO AJ
The applicant,
MilvertonRaynoldGreeff, was charged with count 1- rape and count
2-sexual assault. On 24 March 2010 he was found
guilty of both
counts and sentenced on 20 May 2010 to 10 year’s imprisonment
in respect of count 1 and 3 years imprisonment
in respect of count 2
these sentences were to run concurrently.
He filed a petition with this court
against both his conviction and sentence. Leave to appeal was
granted on 11 February 2011
by, Lacock J and Olivier J in respect of
both his conviction and sentence.
Although leave to appeal was
granted on 11 February 2011, to date the applicant has not filed any
paper into court pertaining
to his appeal. He now approaches this
court to grant him bail pending the hearing and judgment of his
appeal.
Adv I J Nel, who represented the
applicant, set out the following grounds in his papers to support
the application for the release
of the applicant on bail pending his
appeal.
The applicant was 45 years of age
and had a live in partner who was sickly;
He had 16 years in the South
African Police Services(SAPS) when he was convicted and he is
currently battling to attain his pension
monies from the SAPS;
He had lost his house as a result
of his incarceration and therefore upon his release he would be
staying at his mother’s
home at, No. 57,
4deStreet,Warrenvale,Warrenton.
He was able to pay R 2000.00 in
respect of bail, and he undertook to abide by any further conditions
set by the court. In the
lower court, after his conviction he was
granted R2000.00 bail pending his sentenceand he adhered to the bail
conditions imposed
then; and
Lastly, as the record of the
proceedings was not complete for the appeal to be heard, the
compilation of the record might take
time and the appeal in turn
would take some time to be heard.
Mr Nel argued that in a bail
application pending appeal, I am not called upon to consider the
merits of the appeal as two Judges
of this court have already
examined the merits and granted the applicant leave to appeal.He
stated that I am taskedin this application
to consider whether it
would be in the interest of justice for the applicant to remain in
custody or to be released on bail pending
his appeal and whether the
applicant is a flight risk or not.
In my view a court in the course of
bail proceedings is tasked to make a value judgment in accordance
with all the evidence together
with the application of the provision
of section 60(4) and
section 60(9)
of the
Criminal Procedure Act 51
of 1977
. More so if the bail is sought pending an appeal against
conviction and sentence, the absence of reasonable prospects of
success
on appeal may justify refusal of bail. It is evident to me
that additional factors have to be considered in an application for
bail pending an appeal against conviction and sentence.
See
Joubert CRIMINAL PROCEDURE HANDBOOK9
th
edition
(2009) at page 159
.I am not persuaded by Mr Nel’s
submission that I should not consider the merits and only consider
whether the applicant
is a flight risk and whether it would be in
the interest of justice to keep the applicant in custody or not,
since he has been
granted leave to appeal.
It is trite that the mere fact that
one has been granted leave to appeal does not mean that one is by
right entitled to be released
on bail pending the hearing of that
appeal, as there is an existence of a reasonable prospect of success
at the appeal.
See S v BRUINTJIES
2003 (2) SACR 575
(SCA) 577
at
577 d – i.
I turn to deal with the case
against the applicant. The state’s case against the applicant
was that on 24 February 2007
in Warrenton, he unlawfully and
intentionally had sexual intercourse with Margaret Maditsi without
her consentin the toilet of
the police station where he was
stationed. Further that on 3 April 2008 and also in Warrenton the
applicant unlawfully and intentionally
inserted his finger into the
vagina of Nicolette van Rooyen, a relative of his, without her
consent.
If I look at the charges preferred
against the applicant it is evident that applicant committed the
initial’s sexual offence
on 24 February 2007 and the second
sexual offence on 3 April 2008. From the record I note that the
applicant was arrested for
the first sexual offence on 26 February
2007. I can safely conclude that whilst the applicant was on bail or
released for the
initial sexual offence he committed the second
sexual offence.
The state opposed the bail
application of the applicant. The basis of its opposition was that
the applicant had no prospects of
success on appeal on both
conviction and sentences. It would not be in the interest of justice
to release the applicant pending
his appeal as he had been a police
official when he committed these sexual offences, one of which was
inflicted upon a relative.
Further, the applicant was now a flight
risk as he now had the experience of having being in prison and that
was reason enough
for him to flee.
In the court below the magistrate
found that the applicant was guilty of count 1-rape and count
2-sexual assault. In respect of
first sexual offence, count 1-rape,
this act was committed at the Police Station, where the applicant
was employed as an Inspector.At
that time he had been in the SAPS
employ for 16 years. The second sexual offence, count 2-sexual
assault, was committed in one
of his family member’s homesand
was against one of his relatives. What is telling is the fact that
the rape took place
on 24 February 2007, he was arrested on 26
February 2007 and released and whilst his case was pending he
commits yet anothersexual
assault on 3 April 2008. These offences
are relatively a year and two months apart from each other. To
compound issues the second
offence was committed against one of his
family members. This sort of behaviour of the applicant, to my mind,
is an indication
that he is likely to endanger the safety of the
public, that is, other female members of the public or any
particular person,
which could be yet another family relative. Thus
section 60(4)
(a) of the Act
becomes applicable.
When the applicant was released on
bail in the lower court, he was still in the employ of the SAPS and
he had a fixed place of
abode. He has been in custody for over two
years; has been relieved of his services with the SAPS; and he has
lost his fixed
place of abode. Representation was made on his behalf
that he would be residingat his mother’s home.In the face of
the
above facts and in addition the fact that the applicant has
already spent time in prison, the state argued that there was a
likelihood
that he would try to abscond and by doing so he would be
evading the finalization of his appeal. Her again
section60(4) (b)
of the Act
will be applicable.A further consequence of him
absconding would lead to the jeopardizing the proper function of the
bail system
and to this end
section60(4) (d) of the Act
becomes
applicable.
I agree with the submission
advanced on behalf of the state that being a policeman in prison for
the past 2 years would not have
been an ideal situation for the
applicant and as such he would want to be kept out of prison at all
cost. Therefore I am persuaded
that there is likelihood that the
applicant would abscond and evade the appeal procedure.I conclude
that proper grounds in terms
of
sections 60
(4)(a),(b) and (d) has
been set out.
Mr Nel submitted that it is evident
from the record of the proceedings, at the commencement of the
applicant’s evidence
in chief, that the applicant did not have
a fair trial as he was at odds with his representative and also at
odds with the presiding
officer.He further submits that for this
reason alone the applicant had reasonable prospects on appeal that
his conviction and
sentence could be set aside and the trial
commence
de novo
in lower court.
It is trite that in evaluating the
prospects of success it is not the function of this court to analyse
the evidence in the court
a quo
in great detail. If the
evidence is extensively analysed it would became a dress rehearsal
for the appeal to follow.
See S
v Viljoen
2002
(2) SACR 550
(SCA) at 561g-i
. Findings made at this stage might
also create an untenable situation for the court hearing the appeal
on the merits.
See
S v Scott-Crossley
2007(2)
SACR 470 at 473 paragraph [7].
I agree with the sentiments set out
above and as such I do not propose to deal with the contentions
raised by Mr Nel as regards
the issues between the applicant and his
representative and the presiding officer as this will be dealt in
the appeal.
The applicant’s version was
that he did not rape the complainant, Margaret Maditsi, in the
toilet of the police station
whilst he was no duty on 24February
2007. His defence is that the complainant wanted the police to pay
because she was arrested
and assaulted by other police who were also
on duty that is why she pointed him out as having raped her. The
states version which
was accepted by the court
a quo
, was
that the applicant admitted that he was the only one on duty at the
charge office at the time that the alleged rape took
place. When he
removed the complainant from the cells he was not authorised in
terms of police procedure to do so, she being
a female prisoner and
he a male policemen, he was not allowed to remove her if he was not
in the company of a female police or
if none was on duty another
male policemen. Lastly, the complainant though she did not know his
name identified him by the deformity
of his eye and on that night he
was the only policemen on duty with such a deformity.
As regards count 2–sexual
assault of his relative, Nicolette van Rooyen on 3 April 2008, the
applicant stated that there
was a conspiracy against him, by van
Rooyen and her mother and that he had not seen her in the house on
the day in question.
However, thecourt below accepted Van Rooyen
account as to how the offence took place.
In all the circumstanced of this
case I am satisfied that the consideration that the applicant is
likely to abscond, that he is
likely to evade his appeal and that is
likely to endanger the safety of the public by committing further
sexual transgressions
carries more weight than any other
consideration. In the result the application cannot succeed.
Order:
In the result the application to
be released on bail, of the applicant, pending appeal is dismissed.
_________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPEHIGH COURT,
KIMBERLEY
On behalf of the Applicant:
ADV
I J NEL
On behalf of the Respondent:
ADV
J MABASO (DPP)