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[2012] ZAKZDHC 60
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S v Gounden (9783/2012) [2012] ZAKZDHC 60 (9 October 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 9783/2012
In
the matter between:
BRANDON
GOUNDEN
...............................................................................
Appellant
and
THE
STATE
............................................................................................
Respondent
______________________________________________________________
J U D G M E N T
K
PILLAY J
[1] This is an appeal against the
court
a quo’s
refusal to admit the Appellant to bail on
5 September 2012.
[2] The appellant is charged with one
count of assault with intent to do grievous bodily harm. It is common
cause or not in dispute
that the Appellant was released on bail for a
charge of Robbery when he is alleged to have committed this offence.
The accused
also has a previous conviction for assault.
[3] This Court’s
power to interfere with the court
a
quo’s
refusal
to grant bail is circumscribed by the provisions of s 65(4) of Act
51/77 (the Act). The following remarks of
Hefer
J
in
State
v
Barber
1
are apposite.
“
It is
well-known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly,
although this Court may have a different view, it should
not substitute its own view for that of a magistrate because that
would
be an unfair inference with the magistrate’s exercise of
his discretion. I think it should be stressed that, no matter what
this Court’s own views are, the real question is whether it can
be said that the magistrate who had the discretion acted
wrongly……
Without saying that the magistrate’s view was actually the
correct one, I have not been persuaded
to decide that it is the wrong
one.”
[4] It is well
established that an accused person is presumed innocent until his
guilt has been proven in a court of law and courts
should lean
towards the granting of bail unless there is the likelihood that the
interests of justice will be prejudiced. (See
S.
v Hlongwa)
2
[5] The attack on
the court
a
quo’s
refusal
to grant bail is founded on the following alleged misdirections:
That the court
a quo
did not
afford sufficient weight to the provisions of Section 60(6)(i) of
the Act, which permits her to consider the imposition
of special
conditions to allay any danger to witnesses, the administration of
justice and the safety of the public.
That she placed great emphasis on the
fact that the Appellant was charged previously with similar
offences, notwithstanding that
those charges were withdrawn.
She failed to consider the fact that
the complainant in the Robbery charge had filed a withdrawal
statement.
She failed to accord sufficient
weight to the Appellant’s personal circumstances or the
presumption of innocence.
There was no tangible evidence to
support the contention that the Appellant posed a threat to public
safety or the complainant.
[6] The State, in opposition, asserted
that the court a quo exercised its decision judicially and was not
wrong in refusing bail.
[7] The parties accepted that this
application fell within the prescripts of s 60 (11) (b) of the Act in
as much as the accused
was charged with an offence which fell within
the ambit of Schedule 1 at a time when he had been released on bail
in respect of
another Schedule 1 offence, namely robbery.
[8] In terms of the aforesaid section,
the court shall order that the accused be detained in custody until
he or she is dealt with
in accordance with the law, unless having
been given a reasonable opportunity to do so, the accused adduces
evidence which satisfies
the court that the interests of justice
permit his or her release. This section accordingly places an onus on
an accused person
to adduce evidence and to satisfy the court that
the interests of justice permit his release.
[9] As is customary, notwithstanding
the onus which the appellant bore, the State commenced the
proceedings by presenting the evidence
of Constable R Venkatrayadu.
He stated that the allegations against the appellant are that the
latter and his brother confronted
the complainant at his place of
residence and thereafter assaulted him in the car park with a bush
knife and a slasher: that the
complainant sustained serious injuries
to his head, face and body and had to be hospitalised. The charge was
instituted by the
complainant’s father as the complainant was
still in hospital.
[10] There were two witnesses to the
incident namely a family member and a neighbour. He stated that he
was aware of the fact that
the Appellant instituted a counter charge.
His opposition to bail lay principally in the fact that given that
the appellant lives
in the same vicinity as the complainant and the
witnesses, he feared that the appellant would interfere with those
witnesses.
[11] During cross-examination it
emerged that this fear was based on the contention that there were
other charges which the appellant
faced, similar to the one in
question, which were withdrawn. The witness could not dispute that a
withdrawal statement was filed
in the robbery matter.
[12] It also became clear that the
witness did not have a sworn statement from the complainant in this
matter and was accordingly
unable to tell the court exactly what role
the appellant played in the assault. It was also not clarified
whether the two witnesses
he referred to had by then made any
statements.
[13] The appellant did not testify but
instead handed in an affidavit in support of his application. Therein
he stated essentially
that he resides with his parents. He has an
alternative place to reside, namely, with his uncle at 74 Russom
Street, Veulam. He
has a previous conviction for assault for which he
paid a fine. He has a pending case of robbery in the Regional Court.
[14] He was advised by his attorney
that the complainant had filed a withdrawal statement in that matter.
He stated that he had
resolved the issue with the complainant who no
longer wished to proceed with the prosecution. He is not in
possession of a passport
and has strong emotional ties to Verulam. He
was also permanently employed at Everest Flexibles. It was
subsequently established
that he was dismissed by the said firm. He
suffers from Asthma and does not receive adequate medical attention
whilst in custody.
[15] He intends to plead not guilty
and has opened a counter-charge against the complainant. He knows the
complainant and undertakes
not to interfere with him or any other
witnesses. His family including his girlfriend would be prejudiced by
his continued incarceration.
[16] In argument the State contended
that the prerogative to withdraw a charge lay with the State and not
with a complainant.
[17] The paucity of detail presented
by the State in opposition to the application for bail is
unfortunate. However, the passivity
of the presiding officer faced
with such a dearth of information is equally alarming. For as was
said in
S v
Dlamini; S v Dladla and others; S v Joubert; Sv
Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
at para. 49, with regard to a bail
enquiry in terms of Section 60 of the Act, that it ‘It
remains
a unique interlocutory proceeding where the rules of formal proof can
be relaxed and where the court is obliged to take
the initiative if
the parties are silent; and the court still has to be proactive in
establishing the relevant factors”.
[18] In this case no evidence was lead
on the strength of the state case especially in regard to exactly
what role the Appellant
played in the assault of the complainant. It
was also not clear if the witnesses had made statements and what the
content of their
testimony would be. Further the reasons for the
withdrawal of the other “similar” charges were not
canvassed. The learned
magistrate had the power in terms of Section
60 (2) of the Act to postpone the application so that all relevant
information could
be placed before the court.
[19] In refusing bail the learned
magistrate took into account the appellant’s propensity to
commit crimes of violence. She
also appeared to have placed
particular emphasis on the fact there were many matters which were
withdrawn to reinforce her finding
that that the accused is prone to
violent conduct. This is a clear misdirection as the evidence of the
investigating officer was
both vague and unsubstantiated. She however
found that the appellant failed to discharge the onus of
demonstrating that the interests
of justice permit his release.
[20] In dealing with issue of what the
concepts “interests of justice” meant the Constitutional
Court in
Dlamini supra
had the following to say:
“
The
interests of society’ is ‘the sense in which “the
interests of justice” concept is used in sub-s (4).
The
subsection actually forms part of a functional unit with sub-ss (9)
and (10). Between them they provide the heart of the evaluation
process in a bail application, sub-s (9) being predominant. If it is
read first and “the interests of justice” bears
the same
narrow meaning akin to “the interests of society” (or the
interests of justice minus the interests of the
accused), the
interpretation of the three subsections falls neatly into place. The
opening words of sub-s (9) (“in considering
the question in
sub-s (4)”) refer to the question whether bail should be
refused. That question, so the presiding officer
is told, is to be
answered by weighing up the societal interests listed in sub-s(4) and
detailed in sub-ss (5) to (8A) against
the personal interests
adverted to in sub-s (9). And whatever the parties may contend, sub-s
(10) obliges the presiding officer
to ultimately assume
responsibility for that evaluation.’
[21] It appears that the principal and
perhaps only reason why Bail was opposed and refused are those
falling within the prescripts
of Section 60(4) (a) and (c). These
sections read 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; 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 and destroy
evidence….
[22] However, this section has to be
read in conjunction with Section 60(5) of the Act, which provides:
“
In
considering whether the ground in sub-section 4(9) has been
established, the Court may, where applicable, take into account the
following factors, namely:
the degree of violence towards
others implicit in the charge against the accused;
any threat of violence which the
accused may have made to any person;
any resentment the accused is
alleged to harbour against any person;
any disposition to violence on the
part of the accused, as is evident from his or her past conduct;
any disposition of the accused to
commit offences referred to in Schedule 1, as is evident from his or
her past conduct;
the prevalence of a particular
type of offence;
any evidence that the accused
previously committed an offence referred to in Schedule 1 while
released on bail; or
any other factor which in the
opinion of the Court should be taken into account.”
and Section 60(7) which provides:
“
(7) In
considering whether the ground in subsection (4) c has been
established, the court may, where applicable take into account
the
following factors, namely-
the fact that the accused is
familiar with the identity of witnesses and with the evidence which
they may bring against him or
her;
whether the witnesses have already
made statements and agreed to testify;
whether the investigation against
the accused has already been completed;
the relationship of the accused
with the various witnesses and the extent to which they could be
influenced and intimidated;
how effective and enforceable bail
conditions prohibiting communication between the accused and
witnesses are likely to be…..”
[23] It was
emphasised in
S
v Dlamini
et
al
3
that the above
factors serve as a guideline to judicial officers and what weight
each should be afforded should be left to the “
good
judgment of the presiding judicial officer
”
.
[24] This Court is now enjoined to
consider, whether the court a quo misdirected itself in concluding
that the appellant failed
to discharge the onus of satisfying the
court that the interests of justice permit his release.
[25] It was not suggested that the
Appellant will evade trial. On the common cause facts such as they
are, the Appellant faces a
serious charge of assault with intent to
do grievous bodily harm. He was released on bail on a charge of
Robbery when he committed
this offence. He also has a previous
conviction for assault. The attorney representing him placed on
record, that a withdrawal
statement was filed by the complainant in
that matter.
[26] Notwithstanding that the
Appellant bore an onus in terms of Schedule 5, this evidence was not
placed before the Court, neither
did the Appellant testify to that
effect. The Attorney representing him at the application should have
played a more assertive
role, in the interests of his client, in
calling the investigating officer in that matter to confirm or deny
the assertion. The
investigating officer who testified in this
application clearly did not know much about that case and said so.
The fact that a
withdrawal statement is filed does not necessarily
put an end to the charge. As stated before the prerogative to
withdraw a charge
lies with the state. Until that occurs, the charge,
for all intents and purposes, has to be regarded as still pending.
[27] Thus in determining whether the
refusal of bail was justified, this Court will have to determine, in
the context of this case,
whether it has been established that:
the accused’s release will
jeopardise the safety of the public;
the accused will interfere with
witnesses;
the accused will commit offences,
while on bail.
[28] In dealing with (1) above, it is
so, from the undisputed evidence that the Appellant has a propensity
for committing offences
involving the element of violence, as the
charge of Robbery, the current charge of Assault Grievous Bodily
Harm, and a previous
conviction for assault all indicate. The offence
under question committed by the appellant whilst out on bail for
Robbery, serves
to indicate the real likelihood that the Appellant
will commit further offences while on bail.
In my view the offences in question
are inherently substantially harmful to the safety of the public.
[29] At the time of the application
the investigation was incomplete. The complainant had not made a
statement. It is also not clear
whether the two witnesses did so
either. The complainant resides close to where the Appellant resides.
The address which he furnished
to which he is prepared to move
pending finalisation of the trial herein is within the small town in
which they both reside. The
investigating officer has been emphatic
that there was a real likelihood of interference. This fear cannot be
ignored.
[30] As correctly
submitted by the State, the Appellant offered no explanation under
oath to the charges pointing to his innocence.
He was content to put
forward, in support of his application, what appears to me to be a
hastily drawn up affidavit, which could
not be challenged under
cross-examination. This, notwithstanding the onus he bore. Any
disputes of fact arising, will therefore
have to be resolved against
him.
S
v Mungal
4
.
[31] My view, having considered the
judgement of the court a quo carefully and the evidence placed before
it, is that the learned
magistrate was not wrong in refusing bail.
[32] The appeal is accordingly
dismissed.
___________________
K PILLAY J
Date of Judgment: 9 October 2012
Applicant’s Counsel: Adv. N R
Naidoo
Instructed by: Shireen Amod &
Company
Applicant’s Attorneys
Shop 2, Golden Gate Centre
101 Wick Street
VERULAM
Respondent’s Counsel: Adv Y
Vahed
The Director of Public Prosecutions
KwaZulu-Natal
DURBAN
1
1979
(4) SA 218 (D) 220
2
1979
(4) SA 112
((O)
3
Supra
at para 42 g-i
4
Unreported
Case No.AR 311/99 @ page7)