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[2012] ZAKZPHC 27
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Khumalo v S (1957/2012) [2012] ZAKZPHC 27 (4 May 2012)
1
IN THE KWAZULU-NATAL
HIGH COURT
PIETERMARITZBURG
Case
No 1957/2012
In
the matter of
MBONGISENI MAXWELL
KHUMALO
.........................................................
Appellant
VERSUS
THE STATE
…...........................................................................................
Respondent
___________________________________________________________
J U D G M E N T
Delivered
4 MAY 2012
MURUGASEN,J:
This is an appeal consequent upon the
refusal of bail to the appellant, Mbongiseni Maxwell Khumalo, in the
Utrecht Magistrate’s
Court. The Appellant faces one count of
rape of a 13 year old female child, (the State alleging that he has
contravened the provisions
of S 3 read with S 1, 56(1) 57 58 59 60 &
61 of the Criminal Law (Sexual Offences & Related Matters)
Amendment Act 32 of
2007 and read with Section 51 and Schedule (2) of
the
Criminal Law Amendment Act 105 of 1997
) and one count of
Kidnapping.
This appeal is brought in terms of
Section 65 of the Criminal Procedure Act 51 of 1977 (‘the
Act’), and the Appeal Court
must therefore consider the appeal
in accordance with the provisions of Section 65 (4) :
“
The court
or judge hearing the appeal shall not set aside the decision against
which the appeal is brought, unless such court or
judge is satisfied
that the decision was wrong, in which event the court or judge shall
give the decision which in its or his opinion
the lower court should
have given.”
In dealing with the provisions of
Section 65 (4),
Stegmann J in S
v Mbele
and Another
1996 (1) SACR 212(W)
held that the Court hearing
the appeal is required to approach the appeal on the basis of the
assumption that the decision of the
court below was correct, and not
to interfere with the decision unless 'satisfied' that it was wrong :
“
the
idea that must be grasped is that the Court of appeal is required to
uphold the order made by the court below until enough has
been done
to persuade and satisfy the Court of appeal that the order was wrong,
and, in the ordinary course,it is for the appellant
to do whatever
has to be done in that regard “ (page 221)
and further
at 222
a-b:
'…..an appeal relating to the
grant or refusal of bail is of a somewhat special nature. This is
because the court of first
instance is called upon to exercise a
discretion and not to reach a conclusion of law based upon findings
of fact.”
The charge of Rape in respect of which
the Appellant has been detained is a Schedule 6 offence under the
provisions of
Section 51
of the
Criminal Law Amendment Act 105 of
1997
. Thus the application for bail falls within the ambit of
Section
60
(11) (a) of the Criminal Procedure Act 51 of 1977 (“The
Act”) in terms of which :
“
Notwithstanding
any provision of this act, where an accused is charged with an
offence referred to :
(a) in schedule 6, the court shall
order that the accused be detained in custody until he or she is
dealt with in accordance with
the law, unless the accused, having
been given reasonable opportunity to do so, adduces evidence which
satisfies the court that
exceptional circumstances exist which in the
interests of justice permit his or her release.”
The appellate authority in respect of
Schedule 6 offences was set out with clarity in
In S v Porthen
2004 (2) SACR 242
(C )
by the Binns – Ward AJ, who held
:
[17] Without
in any way detracting from the courts' duty to respect and give
effect to the clear legislative policy inherent
in the provisions of
section 60(11)(a) of the CPA (
viz
. that save in exceptional
circumstances it is in the public interest that persons charged with
the class of particularly serious
offences listed in Schedule 6 to
the CPA should forfeit their personal freedom pending the
determination of their guilt or innocence:
see
S v Dlamini
,
supra
, at paragraphs [15] and [66]–[68]), it is still
necessary to be mindful that a bail appeal, including one affected by
the
provisions of section 60(11)(a), goes to the question of
deprivation of personal liberty. In my view, that consideration is a
further
factor confirming that section 65(4) of the CPA should be
construed in a manner which does not unduly restrict the ambit of an
appeal court's competence to decide that the lower court's decision
to refuse bail was "wrong" (see section 39(2) of the
Constitution Act No. 108 of 1996.)
This court will exercise
its appellate authority in terms of section 65 of the CPA, in
accordance with the aforegoing precept.
It has been contended by Mr Ntila obo
the Appellant that the court a quo erred in refusing bail:
As the interests of justice favour
the release of the appellant on bail.
In finding that exceptional
circumstances did not exist despite the
magistrate’s concession that
exceptional circumstances are not clearly defined and another court
would have interpreted exceptional
circumstances differently;
the appellant was not a flight risk;
he is permanently employed, supports
his family and has a fixed residence
in his parental home.
In amplification of the aforegoing Mr
Ntila has submitted that:
On behalf of the State Mr Truter has
submitted that the strength of the State case remained unchallenged
by the appellant’s
version and failure to controvert the
evidence that the complainant was rescued by the police. He concedes
that the appellant is
permanently employed and has traceable
addresses. But the appellant remains a flight risk. This submission
had to be considered
in accordance with the factors set out in S 60
(6) of the CPA 51 of 1977 and the following relevant facts:
the appellant had no fixed assets or
family and emotional ties in the area
he is to be tried.
The onus is on the appellant to
refute the allegation that he is a flight risk
but he failed to address this aspect
in that there was no evidence as to whether or not he is in
possession of valid travel documentation.
The offences with which the appellant
has been charged are serious and
the public must be protected against
those who commit such offences.
He faces a sentence of life
imprisonment.
The state case against the appellant
is strong.
The appellant is dishonest and
attempted to mislead the court by failing
to disclose his previous convictions.
This is an indication that he may then not stand trial.
There is a risk that the
administration of justice will be compromised as
there is evidence that there is undue
pressure on the complainant to withdraw the charges.
Mr Truter submits further that the
magistrate did not misdirect himself on the facts or the law and
correctly denied the appellant
bail in the absence of exceptional
circumstances.
It is not in
dispute that when an accused is indicted on a Schedule 6 offence, a
court has the authority to grant bail only when
the accused has
discharged the onus on him to prove, on a balance of probabilities,
that exceptional circumstances exist which
permit his release on
bail, and that the interests of justice will not be prejudiced
inter alia that it is likely that he will stand trial, not tamper
with witnesses or otherwise interfere with the investigation
of the
case against them or endanger the public.
Exceptional
circumstances are not defined but depend on the facts and
circumstances in each case.
It is evident in the ruling of the
court a quo at the bail application on 27 October 2011,
that
the magistrate was cogniscent of the aforesaid circumscription of his
authority and the relevant criteria to be used in the
exercise of his
discretion. At the commencement of his judgement he referred to the
onus on the appellant and that the evidence
he adduced had to satisfy
that onus. He was also cogniscent that in a bail application the
court had to distinguish between the
merits of the matter and what
constitutes exceptional circumstances, and that exceptional
circumstances had to be determined according
to the facts of each
case. The appellant as correctly held by the learned magistrate
advanced in support of his application only
that he was in his
permanent employment in the Newcastle area and would lose his job and
be unable to support his family if he
was held in custody. The
appellant was however renting a room in the area, although he alleged
that he was able to furnish a permanent
residential address. He
alleged that he had a ‘one day relationship with the
complainant; but he did not know where she lived.
He undertook to
abide by any bail conditions and to continue to reside at the rented
room at Waterval prison. The court did not
draw any adverse
inferences from the failure of the appellant to answer certain
questions put in crossexamination.
The magistrate then considered the
evidence presented by the State: the testimony of the investigating
officer and the reasons he
furnished for opposing bail, inter alia
the seriousness of the offence, the age of the complainant and her
trauma, the coaccused
not yet apprehended, and the reasons why he
considered the appellant a flight risk, and the injuries suffered by
the complainant
as recorded on the medico-legal report. The court
also was alive to the fact that the IO was not present at the arrest
and his
evidence was hearsay, but such evidence was not inadmissible
in a bail application. He also considered that the evidence of the
IO
was supported by the undisputed evidence that there removal of the
complainant from the area in which her home was situated
to Waterval
where the appellant lived was not by agreement or with her consent,
that the complainant herself called the police
and she was found
locked in a garage, and inferred there from that the complainant
would be traumatised by her experience and be
insecure if the
appellant were to be released from custody.
The magistrate however found that the
submissions by the IO on its own did not support his contention that
the appellant was a flight
risk. But from a consideration of some of
the pertinent factors, as set out by Mr Truter in his argument before
this court, the
magistrate found that there was nothing to keep the
appellant within the jurisdiction of the court in which he was
charged and
that he had no fixed assets. He concluded by stating that
the legislature had prescribed the detention of offenders who
committed
crimes that fell within the ambit of Schedule 6 unless
exceptional circumstances had been proved and that as the appellant
had
failed to discharge the onus on him in this respect, his
application to be admitted to bail was refused.
On 7 November 2011, the appellant
launched a further bail application on new facts which were :
1 the appellant had not disclosed his
previous convictions
2 the police acted on their own in
charging the appellant with rape as the complainant did not state
that she was raped when she
‘opened the case”
3 there were attempts on the part of
the complainant to withdraw the charges.
4 on 11 October 2011 the docket went
‘missing’ but it was in the hands of a police officer who
unsuccessfully attempted
to negotiate the withdrawal of the charges
at a fee of R8000.
5 on 20 October 2011 a further charge
of kidnapping was added
The appellant and his girlfriend
Makhubu testified in support of this application.
In his judgement on this further
application, the learned magistrate held that the objective of
Makubu’s evidence was to weaken
the strength of the state case
by undermining the credibility of the complainant. He held further
that while her evidence might
have been appropriate at the trial
stage, it did not assist the appellant to discharge his onus to prove
exceptional circumstances.
He also concluded that the appellant’s
failure to disclose his previous conviction despite being legally
represented was
a failure to be honest with the court; further the
investigating officer had also approached the appellant’s
attorney about
his previous conviction. The failure to disclose his
previous convictions was however not a new fact and was detrimental
to the
appellant’s application. The remaining grounds had also
been in issue during the first bail application. The court held that
there were no new facts presented to it during this application which
proved exceptional circumstances existed which permitted
his release
on bail and dismissed the application.
It lies now for this court to consider
whether in making the aforesaid enquiries and findings in respect of
the facts of this particular
matter and the evidence before him, the
magistrate misdirected himself or erred when he found that the
appellant had failed to
discharge onus to satisfy the court on a
balance of probabilities that there were exceptional circumstances
which in the interests
of justice did not require the detention of
the Appellant but favoured the granting of bail to him.
In Porthen referred to
earlier herein the court held :
[
12] In
determining whether or not a bail applicant has established the
existence of "extraordinary circumstances"
within the
meaning of section 60(11)(a) of the CPA, the court has to make a
decision on the facts judged within the context of
the particular
case. Facts which might be sufficient in one case, might not be
enough to warrant the grant of the bail application
in the peculiar
context of another matter. In
S v Botha en 'n
ander
2002 (1) SACR 222 (SCA)
at paragraph [19], page 230, Vivier ADCJ described the exercise
required of the court as
entailing the making of a "value
judgment" as to whether the proven circumstances are of such a
nature as to be "exceptional".
During the bail application Sgt
Quinton Williams of the Special Crimes against Family and Children
and Sex offenders Unit who was
involved in the investigation of the
offence but not in the arrest of the appellant, testified at the
hearing in the court a quo
on 27 October 2011 that in opposing bail
the State relied on the following allegations:
At approximately 19h30 on 2 October
2011, the complainant who was 13 years old was sent by her mother to
give some money to a
friend
2 males pulled her into the car in
which they had followed her. They covered her eyes but she managed
to see that she was taken
to a house at the Waterval Prison.
The appellant took her into the house
tried to remove her clothes but failed because she resisted; he
called his friend who helped
remove her clothes although she
continued to fight them.
The other male left and the appellant
raped the complainant.
He then locked her in the garage
while he slept in his bedroom.
The complainant called her family and
then the police on the cellphone she had with her; and the police
located the garage in
which she had been locked.
On her release she reported to the
police what had happened and identified the appellant as the person
who had kidnapped and raped
her. He was then arrested. The second
male has not yet been arrested.
The complainant was taken to the
hospital the next day. The J88 medico legal report recorded redness
and bruises in the vaginal
area and fresh tears.
Williams also opposed bail on the
grounds that the offence was very serious, the complainant was 13
years old, there was a strong
case against the appellant and the
other male was still at large. He did not know if the appellant was
employed, he had no fixed
property and Williams considered him a
flight risk. The complainant was very traumatised and her family were
very upset and they
would be vulnerable if the appellant were
released on bail. Williams on the basis of the information at his
disposal as the investigating
officer also disputed the appellant’s
version that he had met the complainant earlier and proposed love to
her, to which
she was receptive, that the appellant was alone in the
evening, not in the company of another male.
The appellant
As the function of the court in a bail
application is to prima facie determine the relative strength of the
States’s case
(
S v Van Wyk
2005 (1) SACR 41
SCA).
the magistrate has relied on the
testimony of Williams as the investigating officer and the
medicolegal report produced by the State
to evaluate the strength of
the state’s case. But he also properly considered the evidence
of the appellant and his witness
to decide whether that the appellant
had discharged his onus to provide exceptional circumstances in order
to admit him to bail
In
S
v Schietekat
1998
(2) SACR 707 (C)
at
713
h-
714
a
Slomowitz
AJ stated:
‘
Bail
proceedings are
sui generis.
…….
The State is thus not
obliged in its turn to produce evidence in the true sense. It is not
bound by the same formality. The court
may take into account whatever
information is placed before it in order to form what is essentially
an opinion or value judgment
of what an uncertain future holds. It
must prognosticate. To do this it must necessarily have regard to
whatever is put up by the
State in order to decide whether the
accused has discharged the
onus…………
‘
The aforesaid guidelines lend cogency
to the nature of the information that is in the possession of the
State in respect of the
commission of the offences, in particular the
undisputed evidence of the manner in which the complainant was taken
to the appellant’s
home and her rescue by the police after she
contacted her family and the police from a garage in which she was
locked, and the
medico-legal report which recorded evidence of recent
and violent or forcible sexual penetration.
As against the strong
prima facie
State case against the Appellant, the Appellant has adduced
little persuasive evidence that he will stand trial. Although he is
permanently employed in Newcastle, his lack of substantial assets and
family ties in the area in which he will be tried, militate
against
acceptance of his submission that he will not abscond, and is not a
flight risk. As correctly pointed out by Mr Truter
the appellant has
failed to address this issue and merely relied on his employment in
the area, his support of his dependants and
his undertaking that he
will remain at his rented room in Waterval.
On the other hand the considerations
of the seriousness of the crime, and the manner in which the
complainant was abducted and the
deprivation of her liberty and the
sexual assault that was perpetrated on her are not only relevant but
will constitute aggravating
factors in the consideration of whether
the prescribed minimum sentence of life imprisonment is appropriate,
and are therefore
relevant in an assessment of whether the Appellant
will attempt to evade trial.
Mr Ntila has submitted that it is in
the interests of justice that the appellant be granted bail. However
there has been no address
in this respect which is also fatal to the
application and appeal.
In exercising its
judicial discretion, a
court
must consider the totality of the circumstances.
S
v STANFIELD
(1)
SACR 221 (C)
at 226 c – d
I cannot therefore fault the
magistrate’s reliance on and the weight lent to the evidence
presented by the State as opposed
to the evidence furnished by the
Appellant after a consideration of all the relevant evidence and his
assessment that the factors
advanced in support of the applications
for bail did not constitute exceptional circumstances.
This court of appeal, like the
magistrate, is fully cogniscent that the Constitution of South Africa
provides that no person ought
to be deprived of his freedom
arbitrarliy and that if it in the interests of justice, an arrested
person is entitled to release
from detention on bail.
Nevertheless, as duly considered by
the court a quo, the provisions of Section 60 of the Act have been
promulgated to regulate the
granting of release from detention in
respect of serious crimes and must accordingly be implemented with
due regard to the guidelines
provided by the act itself and decided
cases.
Having considered the all the
information placed before the court a quo I remain unpersuaded on the
merits of this appeal. I am
also unable to find that the magistrate
has erred in his exercise of judicial discretion in finding that the
Appellant has failed
to discharge the onus on him to prove on a
balance of probabilities that exceptional circumstances exist which
in the interests
of justice permit the granting of bail to the
Appellant.
In
the premises the Appeal is dismissed.
____________________________________
THE
HON MADAM JUSTICE MURUGASEN
No
heads of argument
Record
incomplete