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2011
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[2011] ZAFSHC 115
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Moiloa and Others v S (A139/11) [2011] ZAFSHC 115 (7 July 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case number : A139/11
In
matter between:-
N.I.
MOILOA
….......................................................................................
First
Appellant
M.L.
NTAJE
…..................................................................................
Second
Appellant
M.
MAQANE
….....................................................................................
Third
Appellant
O.E.
MPHIRIME
…............................................................................
Fourth
Appellant
T.S.
MOEKETSI
…................................................................................
Fifth
Appellant
J.M.
SKOSANA
…...............................................................................
Sixth
Appellant
M.I.
FINGER
…................................................................................
Seventh
Appellant
K.
MUNSAMY
…................................................................................
Eighth
Appellant
and
THE
STATE
….............................................................................................
Respondent
_____________________________________________________
CORAM:
VAN ZYL, J
_____________________________________________________
HEARD ON:
19
MAY 2011
_____________________________________________________
DELIVERED ON:
20 MAY 2011; 7 JULY 2011
_____________________________________________________
This is a judgment in an
urgent bail appeal against the refusal to grant bail to the
appellants by the Regional Court, Ficksburg,
on 29 April 2011 in
case number SH16/2001.
This matter served
before me during the afternoon of 19 May 2011. Because of the
inherently urgent nature of a bail appeal, I
deemed it necessary to
give an order in the matter as soon as was practically possible. I
therefore made the following order
on 20 May 2011 and indicated that
I will provide the reasons for my order in due course:
“
1.
Appellante se
appèl
teen die Hof
a
quo
se
weiering om aan appellante borg te verleen, slaag, en die gemelde
bevel word tersyde gestel.
2. Borg word aan appellante verleen op
die volgende voorwaardes:
2.1 Borggeld ten bedrae van R1 000.00
is deur elke appellant betaalbaar.
2.2 Sodanige appellante as wat in
besit is van ʼn paspoort, moet dit onverwyld aan die
ondersoekbeampte oorhandig.
2.3 Geen appellant mag die
landdroshofdistrik van Bloemfontein verlaat sonder die voorafverkreë
toestemming van die ondersoekbeampte
nie.
2.4 Geen appellant mag die
landdroshofdistrik van Ficksburg besoek anders as vir doeleindes van
die bywoning van verdere hofverrigtinge
in die hangende saak teen
hulle onder saaknommer SH16/11 nie.”
Consequently this
judgment contains the reasons for the said order.
Background and the
findings of the Court
a
quo
:
All the appellants are
employed by the South African Police Service and they are all
attached to the Public Order Policing Unit
in Bloemfontein. On 13
April 2011 there was a protest march by members of the community of
the Meqheleng area of Ficksburg in
relation to their dissatisfaction
regarding the lack of service delivery by the various municipality
agencies. The appellants
were part of a group of police officers who
were at the time deployed in the Ficksburg area in their official
capacity to oversee
the protest march. At a certain stage the
protest march became unruly and violent, during which events the
members of the Public
Order Policing Unit, including the appellants,
then intervened and during their actions mr. Andries Tatane was
fatally injured.
It is as a result of this incident that the
appellants were arrested.
The eight appellants are
accused numbers 1 to 8 in the said pending case against them in the
Court
a
quo
.
It should however be noted that in the Court
a
quo
second
appellant is accused number 3, whilst third appellant is accused
number 2. Likewise, seventh appellant is accused number
8 in the
Court
a
quo
and
eighth appellant is accused number 7. The necessity to point this
out is because it is evident from the charge sheet, p. 28
of the
record, that only accused numbers 1 and 2, hence first and third
appellants, are charged with murder. The other appellants
are
seemingly only charged with assault with the intent to do grievous
bodily harm. Mr. Nel, on behalf of the appellants, pointed
this out
at the outset of his oral argument before me and mr. Chalale, on
behalf of the State, did not indicate nor argue anything
to the
contrary. Contrary to the aforesaid, the learned Magistrate recorded
the following in his judgment at p. 124, line 23
to p. 125, line 2
of the record:
“
At
the outset of this bail application I was informed by mr. Mahloko
that the State and the Defence is
ad
idem
that
the offence relevant here is a so-called Schedule 5 offence.”
[
sic
]
This is clearly wrong,
because although the charge of murder is indeed a Schedule 5 offence,
the charge of assault with the intention
to do grievous bodily harm
is not. This had the result that the Court
a
quo
wrongly
applied the statutory prescripts in the Criminal Procedure Act, 51
van 1977 (hereinlater referred to as “the Act”)
applicable to Schedule 5 offences to second appellant and fourth to
eighth appellants. (I deem it necessary to record that mr.
Nel did
not represent the appellants in the Court
a
quo.)
Section 35(1)(f) of the
Constitution of the Republic of South Africa, 1996 determines as
follows:
“
Everyone who
is arrested for allegedly committing an offence has the right …
to be released from detention if the interests
of justice permit,
subject to reasonable conditions.”
Section 60(1)(a) of the
Act provides the following in this regard:
“
An
accused who is in custody in respect of an offence shall, subject to
the provisions of section 50(6), be entitled to be released
on bail
at any stage preceding his or her conviction in respect of such
offence, if the Court is satisfied that the interests of
justice so
permit.”
The Court
a
quo
correctly
pointed out that in order to determine under what circumstances it
will not be in the interests of justice to release
an accused person
from detention, the stipulations of Section 60(4)(a) to (e) of the
Act should be considered, which 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
(b) where there is the likelihood that
the accused, if he or she were released on bail, will attempt to
evade his or her trail;
or
(c) where the 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.”
[7] In his consideration
of Section 60(4)(a) to (e), the Magistrate found in his judgment, in
my view correctly so, that right from
the beginning of the bail
application
“
it became
abundantly clear that:
“
(1)
there is absolutely no likelihood that if released on bail any of the
accused will endanger the safety of the public or commit
any other
offence;
(2)
that there is no likelihood that if released on bail any of the
accused will attempt to evade his trial;
(3) there is no likelihood that if
released on bail any of the accused will influence or intimidate any
witness or conceal or destroy
evidence; and
(4)
there is no likelihood that if released on bail any of the accused
will undermine or jeopardise the objectives or proper functioning
of
the criminal justice system.”
These findings of the
learned Magistrate stand unchallenged and based on the evidence
before me, I also confirm the correctness
of these findings by the
Court
a
quo
. It
is therefore not necessary to deal with Sections 60(5), (6), (7) and
(8) of the Act.
The learned Magistrate
then continued by dealing with the only remaining ground on which it
could have been found that it will
not be in the interests of
justice to release the appellants on bail, being the ground referred
to in Section 60(4)(e), which
I again quote for the sake of
convenience:
“
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.
”
In his consideration of
the aforesaid ground, the learned Magistrate referred, correctly so,
to Section 60(8A) of the Act, which
determines as follows:
“
(8A)
In considering whether the ground in subsection (4)(e) has been
established, the court may, where applicable, take into account
the
following factors, namely –
(a) whether the nature of the offence
or the circumstances under which the offence was committed is likely
to induce a sense of
shock or outrage in the community where the
offence was committed;
(b)
whether the shock or outrage of the community might lead to public
disorder if the accused is released;
(c) whether the safety of the accused
might be jeopardized by his or her release;
(d)
whether the sense of peace and security among members of the public
will be undermined or jeopardized by the release of the
accused;
(e)
whether the release of the accused will undermine or jeopardize the
public confidence in the criminal justice system; or
(f) any other factor which in the
opinion of the court should be taken into account.”
In my view it is clear
from the aforesaid statutory provisions that with regard to second
appellant and fourth to eighth appellants,
the State had a practical
burden or onus to adduce evidence or information to establish the
existence of the circumstances in
Section 60(4)(e) and furthermore
the likelihood of it happening. See
S
vs TSHABALALA
1998(2)
SACR 259 (CPD) at 269 D to F. Such a finding needs to be made on the
probabilities. Unless it can be found that the consequences,
or one
of the consequences, stipulated in Section 60(4)(e) will probably
occur, detention of the said appellants is not in the
interests of
justice and the said appellants should then be released on bail.
When dealing with the
application of first and third appellants, being the appellants who
are being charged with murder, the position
is however different.
With regard to them, the provisions of Section 60(11)(b) of the Act
are applicable, which read as follows:
“
(11)
Notwithstanding any provisions of this Act, where an accused is
charged with an offence referred to –
(a) …
(b) in Schedule 5, but not 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 a reasonable opportunity to do so, adduces
evidence which
satisfies the court that the interests of justice
permit his or her release.”
From the aforesaid it is
clear that Section 60(11) in fact imposes an onus of proof on first
and third appellants of satisfying
the court on a preponderance of
probabilities that the interests of justice permit the granting of
bail. See
S
vs TSHABALALA
,
supra
,
at 269 G to 270 A. (I deem it necessary to record that I am well
aware that the last-mentioned judgment was given at a date before
the
latest amendments of Section 60 of the Act. However, the stated
principles regarding onus were, in my view, not affected by
the
amendments to Section 60 of the Act which were effected after the
delivery of the said judgment.)
The learned Magistrate
failed to make the aforesaid differentiation between the legal
position of second appellant and fourth
to eighth appellants from
that of first and third appellants. In this regard the following was
recorded in his judgment at p.
132, line 13 to 16 of the record:
“
It is with
these facts in the back of my mind that I have to decide whether
appellants managed to succeed to satisfy me, the Court,
that it is in
the interests of justice to release them on bail.”
He therefore approached
the bail application on the basis that all the appellants had the
burden or onus to satisfy the court that
it is in the interests of
justice to release them on bail, which is clearly wrong.
The learned Magistrate
then stated that he is “
acutely
aware that a Court of law should be extremely cautious to rely
solely on Section 60(4)(e) and 60(8)(A) of the Criminal
Procedure
Act to refuse bail
”
.
He also referred to the judgment in
S
vs DLAMINI; S vs DLADLA AND OTHERS; S vs JOUBERT; S vs SCHIETEKAT
1999(2) SACR 51 (CC) and
recorded “
what is
important to bear in mind is that the Constitutional Court also said
that section 4(e) was only to come into play in exceptional
circumstances and the finding to this effect had to be established
on a preponderance of probabilities
”
.
The learned Magistrate then posed the following in his judgment at
p. 134, lines 3 to 8 of the record:
“
The question
is: can I therefore find that the circumstances surrounding the death
of Andries Tatane, the way in which he was killed,
the outrage in the
broader community and the threats of violence constitute such
exceptional circumstances as envisaged in
S
v Dlamini
in
the Constitutional Court.”
The learned Magistrate
eventually came to the following conclusions and finding
(hereinafter referred to as the “final conclusions
and
finding”) in his judgment, reflected at p. 135, line 23 to p.
136, line 19 of the record:
“
After
having considered the totality of the evidence, the relevant
legislation and the case law I have reached the following conclusion:
(1) That this is indeed a case where
exceptional circumstances as envisaged by Section 60(4)(e) of the
Criminal Procedure Act is
a reality.
(2)
That there is the likelihood that the release of the accused will
disturb the public order or undermine the public peace or
security,
especially in the light of the standing of Mr. Tatane within the
community.
(3)
The brutality of the killing of Mr. Tatane clearly induced a sense of
shock and outrage in the community.
(4)
That there is a real possibility that the sense of peace and security
and members of the public will be undermined or jeopardized
if the
accused are released on bail.
(5)
That there is a real possibility that the release of the accused will
undermine or jeopardize the public confidence in the criminal
justice
system.
I therefore find that at this stage it
will not be in the interest of justice to release the accused on bail
Bail is therefore denied
for all the accused.” [
sic
]
The merits of the
appeal:
In considering this
appeal, I am mindful of the stipulations of Section 65(4) which are
applicable in an appeal with regard to
bail:
“
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.”
It appears from the
record, p. 85, lines 16 to 17, that the parties agreed in the Court
a quo
,
that the State will start with the presentation of evidence. In this
regard the State handed in an affidavit by one mr. Glen
Angus, dated
25 April 2011, which affidavit was accepted as Exhibit A. From the
said affidavit it is evident that mr. Angus is
employed at the
Independent Complaints Directorate, Kimberley, Northern Cape as the
Deputy Provincial Head. At the time he deposed
to the affidavit, he
was appointed to assist in and lead the investigation pertaining to
the incident which forms the topic of
this bail application.
The
State then further presented the
viva
voce
evidence
of one mr. Makgeta Philip Seloko, who resides at Meqheleng, Ficksburg
and who has been a resident of Ficksburg for about
fourty six years.
Mr. Seloko is the deputy principal at Katlesong Secondary School. He
is furthermore a member of the executive
committee of Meqheleng
Concerned Citizens, which he explained is a community council who
serves as a link between the community
of Meqheleng and the Sitoto
Municipality. In the time period preceding the day of the incident,
the Meqheleng Concerned Citizens,
on behalf of the community of
Meqheleng, had been trying to engage with the municipality over lack
of services, especially basic
services like poor water supply, the
overflowing of sewerage and poor road conditions, but without any
success. On the day of the
incident members of the Meqheleng
Concerned Citizens, as well as members from the community of
Meqheleng, marched to the offices
of Sitoto Municipality, after
having applied for and given permission to march as such. He
testified that they were informed regarding
the rules and regulations
of the march, which they understood. The march started at Meqheleng
in the morning. It was a peaceful
march which was monitored by
members of the South African Police Services, both at the front and
at the back of the marching group.
Mr. Seloko then testified as
follows, as it appears from the record, p. 88, line 7 to p. 89, line
8:
“
We
marched until we reached the municipality offices. The purpose of us
marching to their offices was to get the answers pertaining
to all
the concerns from the community, which they never answered as yet. On
that particular day the mayor was granted an opportunity
to respond
on those concerns which were reflected on the memorandum. As he was
responding on the memorandum, Your Worship, there
was a squeeze
bottle as well as an apple appearing from the second floor of the
municipality building which was thrown into the
crowd.
Let
us not get into details of what step by step transpired. Basically
you said the march itself was peaceful and now I hear you
talking
about some squeeze bottles throwing. My understanding is it then
turned violent? … Indeed Your Worship, it turned
violent as a
result of those people who dropped the squeeze bottle and the apple
into the protestors and they turned violent. Then
the protestors also
retaliated by throwing stones at the municipality building.
Sir,
will I be correct to say at the end of the day there was one person
who was killed out of the whole incident of that day? …
Indeed
Your Worship, one person died.
Do
you know who this person is? … Yes, Your Worship.
Yes? … His name is Andries
Meleka Tatane, Your Worship.
Was he a resident locally? …
Yes, he was a resident in Meqheleng, Your Worship.”
From his further evidence
it was evident that mr. Tatane had very positive attributes as a
person which he exercised in favour of
his community. He was
therefore considered to be a “gold coin” in the community
of Meqheleng. He was not a member of
the executive committee of the
Meqheleng Concerned Citizens, because he was registered to be an
independent councillor. However,
he was an ordinary member of the
Meqheleng Concerned Citizens and also an assistant in this regard.
Mr. Seloko testified that he
attended the funeral of the deceased.
With regard to the
evidence of mr. Seloko, the learned Magistrate made the following
relevant remarks and/or inferences in his
judgment, p. 46, line 2
and further of the record:
“
It was
during this protest march that started peacefully but became violent
when somebody threw objects to the crowd, or into the
crowd that mr.
Andries Tatane was killed by the police during their actions.
Mr.
Seloko then told the court about the exceptional attributes of the
late mr. Andries Tatane … I do not find it surprising
therefore that mr. Seloko referred to him as a ‘gold coin’.
Mr. Seloko further testified and
explained that the members of the community here in Ficksburg was
severely shocked and outraged
by the death of mr. Tatane.
Some of the community members also
juveniles got out of control. Shops were looted and the library where
mr. Tatane gave his lessons
as well as other buildings were burned
down. Roads were barricaded and there was general conflict between
the community and the
members of the South African Police Service.
Mr. Seloko also testified that after
the arrest of the first six accused the community all indicated their
opposition to bail for
the accused. Songs were sung outside the court
building and also in the streets.
Mr.
Seloko further testified and said and those were his words ‘that
he guarantees that if bail is granted the community will
turn violent
and be out of control’.
He
further stated that the community will lose confidence in the
judiciary if bail is granted, especially because of the fact that
the
accused are policemen.
Mr. Seloko was thoroughly
cross-examined by Mr. De Beer, a very experienced criminal law
attorney. The witness did concede that
criminal elements within the
community might exploit this situation in Ficksburg. ... Mr. Seloko
never got upset during his evidence
in chief or during
cross-examination. He remained calm and he answered all questions
posed to him.
In
general mr. Seloko made a very good impression on me as a witness.
He, like mr. Tatane is clearly an outstanding citizen in the
community of Ficksburg.
I firmly believe that although there
might be rogue elements amongst the protestors the vast majority are
decent citizens who were
fed up with inferior service delivery and
utterly shocked by the death and more especially the way that mr.
Tatane was killed on
the 13
th
of April at the hands of, apparently
on the
prima facie
evidence, members of the South African
Police.
It
is clear that at this point in the history of our country there is
widespread dissatisfaction with service delivery in various
communities.
It is my impression that also decent
citizens many who stay in Ficksburg are extremely upset about that
state of affairs. Furthermore
it would only be an extremely
uninformed citizen who is not aware of the current public outcry and
debate about the police misconduct
and brutality.”
With regard to the
affidavit of mr. Angus, the learned Magistrate referred to the
following parts thereof in his judgment at p.
128, line 18 and
further of the record:
“
Mr.
Angus in his statement made it clear that there is enormous media
interest in this matter, even internationally so. Furthermore
that
there was clearly a sense of shock about the killing of mr. Tatane
within the community of Ficksburg and in his words, and
I quote: ‘a
disturbing loss of confidence in the SAPS’.
Mr. Angus further alluded to the
protest by the community where they clearly voiced their opposition
to bail for the accused in
particular and towards the SAPS in
general. The extent of the media interest in this matter was clear
for everyone to see here
at court.”
[19] In my evaluation of
the affidavit of mnr. Angus and the evidence presented by mr. Seloko,
as well as the rest of the evidence
that served before the Court
a
quo,
I
came across a number of very important issues which were either not
dealt with by the learned Magistrate in his consideration
of this
matter or which were, in my view, wrongly dealt with. I will now deal
with the most important of these:
19.1 The prosecutor in
his re-examination of mr. Seloko elicited evidence from mr. Seloko to
the effect that he would have presented
the very same evidence in
court even if he was not an acquaintance or friend of the late mr.
Tatane. In my view this piece of evidence
can however not change the
real facts of the matter, being that it is very clear that mr. Seloko
and the late mr. Tatane were friends,
that they actively served in
the same community, that they were both part of the march against bad
service delivery and that this
very same executive committee of which
mr. Seloko is the deputy chairperson, has a direct, self-serving
interest in trying to maintain
the support of the rest of the
community. This subjective interest which mr. Seloko and his
committee have or had in the outcome
of the bail application, is very
evident from the following passage from his evidence at p. 94, lines
9 to 14 of the record:
“
If that
(referring to the granting of bail to the appellants) happens as a
concerned group will you be able to contain them (referring
to the
members of the community)? … We definitely cannot Your
Worship, since we had already seen what they are able to do
when they
are bending their anger. There is also a likelihood Your Worship that
the community can turn against
us
and will
choose
us
to be
sell-outs.” (Own emphasis)
In my view the Magistrate
erred in failing to realise that mr. Seloko was therefore probably
bias and that his evidence was probably
tainted as a result of his
personal and subjective interests in the matter.
19.2 As already cited in
paragraph 17 above, the learned Magistrate apparently attached severe
weight to the evidence of mr. Seloko
to the effect that if bail was
to be granted to the appellants, the community will turn violent and
be out of control. However,
it is evident from the evidence of mr.
Seloko as reflected in paragraph 16 above, that the community members
who participated in
the march had already turned violent before mr.
Tatane was killed. This is also confirmed in paragraph 8 of the
affidavit of mr.
Angus at p. 79 of the record, where he stated the
following:
“
It is
alleged that the protest march became unruly and stones were pelted
on the municipal offices, damaging the property. It is
alleged in the
attempts to subdue the situation, persons were detained for public
violence...”
In my view the learned
Magistrate failed to take the last mentioned, very important, fact
into consideration and consequently erred
in apparently
over-emphasising the role which the incident during which mr. Tatane
was killed, played in the violent conduct of
some of the members of
the community.
19.3 In reaching his
conclusions, the learned Magistrate made the following remark
(already quoted within context in paragraph 17
above) in his judgment
at p. 131, line 22 to p. 132, line 4 of the record:
“
I firmly
believe that although there might be rogue elements amongst the
protestors the vast majority are decent citizens who were
fed up with
inferior service delivery and utterly shocked by the death and more
especially
the
way
that
mr. Tatane was killed on the 13
th
of April at
the hands of, apparently on the
prima
facie
evidence,
members of the South African Police.” (Own emphasis)
In paragraph 3 of the
learned Magistrate’s final conclusions and finding in his
judgment at p. 136, lines 9 to 10 of the record
(already quoted
within context in paragraph 13 above), he also stated that:
“
The
brutality
of the killing
of
mr. Tatane clearly induce a sense of shock and outrage in the
community.” (Own emphasis)
After a careful perusal
of the whole record, I was unable to find a single piece of evidence
which could have substantiated the
Magistrate’s aforesaid
finding about “the way that mr. Tatane was killed” and
“the brutality of the killing
of mr. Tatane”. No evidence
whatsoever was lead as to how and in what way mr. Tatane was killed.
It unfortunately seems that
the learned Magistrate allowed his
personal knowledge of what he probably heard and saw in the media to
have influenced his thoughts
and his conclusions in this regard. In
addition he, in my view, also erred in referring to other incidents
of alleged police misconduct
and brutality that are not linked and/or
related to the incident at hand. In this regard the following is
reflected in his judgment
at p. 129, lines 5 to 10 of the record:
“
Furthermore
reporting in the media was so widespread and extreme that judicial
cognisance can be taken of this fact. Reference to
police brutality
and misconduct by the police are made in the media during the last
four days, or last few days. It is not surprising
therefore that
emotions are running extremely high.”
In
any event, the learned Magistrate`s reference to alleged police
misconduct is totally misplaced, because a bail application is
and
should not be concerned with the question of guilt. In
S vs DLAMINI; S
vs DLADLA AND OTHERS; S vs JOUBERT; S vs SCHIETEKAT
,
supra,
the
following
dictum
in this
regard is stated at 63 G to the judgment:
“
An
important point to note here about bail proceedings is so
self-evident that it is often overlooked. It is that there is a
fundamental
difference between the objective of bail proceedings and
that of the trial. In a bail application the enquiry is not really
concerned
with the question of guilt. That is the task of the trial
court.”
From his judgment as a
whole, it is evident that the learned Magistrate greatly emphasised
the service delivery issue, to the
extent that he actually referred
to the “
widespread
dissatisfaction with service delivery in various communities
”
(at p.132, lines 6 to 7
of the record, and already quoted within context in paragraph 17
above), the occurrence of which is
obviously irrelevant for
purposes of the adjudication of this matter, moreover so with
regard to any such problems in
other
communities. In my view
he failed to distinguish between violent conduct that had erupted
or will again erupt as a result of
the poor service delivery issue
from the actual question at hand, being the likelihood of the
community turning violent as
a result of the appellants being
released on bail.
As previously pointed
out herein, mr. Angus in his affidavit (which, it should be
remembered, was presented as evidence on behalf
of the State) noted
the following in paragraph 8 thereof regarding the surrounding
circumstances that lead to the unfortunate
death of mr. Tatane:
“
It is
alleged that the protest march became unruly and stones were pelted
on the municipal offices, damaging the property. It is
alleged in the
attempts to subdue the situation, persons were detained for public
violence and the deceased was also in the process
of being detained
when he resisted, resulting in a scuffle and the subsequent death of
the deceased.”
It is consequently clear
that on the State’s own version, mr. Tatane was not only just
part of the protestors, but he allegedly
participated in the acts of
public violence and when he was in the process of being detained, he
resisted, resulting in a “scuffle”
and his subsequent
unfortunate death. Nowhere from the judgment of the learned
Magistrate does it appear that he took these very
important facts
into consideration in reaching his conclusion. In this regard the
Magistrate also overlooked and/or ignored similar
allegations which
were made by all of the appellants in paragraph 12 of their
respective affidavits, which more or less all read
similar. I quote
paragraph 12 from the affidavit of third appellant, which reads as
follows:
“
I will plead
not guilty. I will deny that I am guilty of murder. I was deployed in
a riotous situation. The deceased was violent
and he attacked
inter
alia
one
of my colleagues. The SAPS members’ involvement was aimed at
protecting my colleagues and to effect an arrest. I deny
any
allegation of murder. At all relevant times my actions were lawful.”
Instead of taking the
aforesaid very relevant circumstances into consideration, the learned
Magistrate did the contrary by referring
to the judgment in
S
vs MISELO
2002(1)
SACR 649 (CPD), with regard to which he gave the following (correct)
summary of the relevant facts of that matter in his
judgment at p.
134, line 16 to p. 135, line 1 of the record:
“
In the case
of
S
vs Miselo
the
accused was charged with attempted murder against the backdrop of
serious taxi violence or taxi wars in the Cape Town area.
Based
mainly as I understand this decision on the prevailing taxi violence
at the time the court in Miselo found that exceptional
circumstances
for applying Section 60(4)(e) do exist that the release on bail would
disturb the public order or undermine the public
peace or security
and that the circumstances under which the offence took place is
likely to induce a sense of shock or outrage
in the community where
the offence was committed.”
The
Magistrate then went further and quoted the following particular
paragraph from the judgment:
“
Right minded
people were aghast in my view, at what took place in the Western Cape
and how callous the perpetrators were to achieve
their unlawful
goal.”
The learned Magistrate
therefore clearly used this judgment in support of his final
conclusions and finding. The background circumstances
of that case
were however vastly different to the circumstances in the current
instance. Some of the relevant background circumstances
were
summarised as follows at 650 G to I of the judgment:
“
[3] Last
year the Western Cape was shaken with the ‘war’ which
raged between the taxis and the Golden Arrow bus drivers.
[4]
Innocent people were killed or maimed, property was damaged and the
whole of the Western Cape was in an uproar.
[5]
Predominantly people from lower social- economic groups were affected
– these were, in the main, innocent people attempting
to use a
transport system so that they could get to and back from work so as
to earn a living. It has been suggested that taxi
owners waged this
‘war’ so as to deter people from using such bus service
and compel them rather to use a taxi service.”
In the current instance,
contrary to the situation in the aforesaid judgment (although I
should definitely not be understood to
make any finding regarding the
merits of any conduct which lead to the unfortunate death of mr.
Tatane), the protestors who became
violent were the ones acting
unlawful at the time and the members of the police service, which
included the appellants, were actually
the ones who were deployed in
order to bring the unruly situation and unlawful conduct of the
protestors under control.
The learned Magistrate
apparently failed to take the last mentioned very relevant
circumstances into consideration and failed to
distinguish the facts
in the
Miselo
-
judgment from those in the current instance. In so far as the
Magistrate’s conclusion that the killing of mr. Tatane induced
a sense of shock and outrage in the community was based on the
Miselo
-judgment,
this finding is in fact unsubstantiated. The events in the current
matter are a far cry from the events that occurred
in
S
vs MISELO
.
19.6 It is common cause
that all the appellants are resident in Bloemfontein and not in the
Ficksburg area. They are attached to
the Public Order Policing Unit
in Bloemfontein and the only reason why they were in Ficksburg at the
time, is because they were
deployed there on official duty. These
very important common cause facts were never mentioned or considered
in the judgment of
the learned Magistrate. In this regard the
following evidence appears from the cross- examination of mr. Seloko,
at p. 105, line
1 to 5 of the record:
“
Sir the
community quite simply does not want to see these eight policemen be
employed here in Ficksburg again, correct? …
Indeed, Your
Worship.
If they don’t sit foot here
again you will be happy? … Yes, Your Worship.”
The Magistrate completely
failed to take into consideration that if and when the appellants
were to be released on bail, they would
not be finding themselves
within the Ficksburg area and they will therefore be removed from the
Ficksburg community.
In
S
vs DLAMINI; S vs DLADLA AND OTHERS; S vs JOUBERT; S vs SCHIETEKAT
,
supra
,
the learned Judge, in his discussion of Section 60(4)(e) and 60(8A)
of the Act, made the following remarks at 80 F to 81 A:
“
The ugly
fact remains, however, that public peace and security are at times
endangered by the release of persons charged with offences
that
incite public outrage. … Experience has shown that organised
community violence, be it instigated by quasi-political
motives or by
territorial battles for control of communities for commercial
purposes, does subside while
ringleaders
are in
custody. Their arrest and detention on serious charges does instil
confidence in the criminal justice system and does tend
to settle
disquiet, whether the arrestees are war-lords or drug- lords. …ss
60(4)(e) and (8A) … (are) reasonable
and justifiable in the
prevailing climate in our country.” (Own emphasis)
Although I am in
respectful agreement with the aforesaid case law, the prevailing
facts in the current matter are again distinguishable
from those
underlying the aforesaid stated principles. In the current instance,
the appellants are in fact the “outsiders”
who do not
form part of the community nor of the community violence that erupted
as a result of poor service delivery.
The Magistrate
consequently furthermore erred in this regard by not considering that
appropriate bail conditions can prevent contact
between the
appellants and the community members of Ficksburg. In this regard mr.
Angus also stated in paragraph 7 of his affidavit
at p. 79 of the
record, as follows:
“
Further the
investigation team is of the view that the safety of the accused is
not a risk, provided that they are not deployed
on official duty or
remain in the Fickburg area in their personal capacity. They are not
resident in the area and there is therefore
no reason, other than to
attend to the court proceedings that would require them to be in the
Ficksburg area. Due to the fact that
the accused were on duty at the
time of the alleged offences, they can and should be provided with
the required protection to attend
court, if they feel that this is in
their best interests, yet the ICD does not wish to elaborate on this
as SAPS management will
need to consider this in consultation with
the accused.”
It never was the case of
the State, nor was any evidence presented in this regard, that when
the appellants do have to attend the
pending court case in Ficksburg,
the police services will not be able to control the members of the
community and/or manage any
possible outbreak of violence.
[20] Because of the
(
prima
facie
)
conclusion the learned Magistrate reached in his judgment to the
effect that it will not be in the interests of justice to release
the
appellants on bail, he then referred to the duty on a court to
consider the provisions of Section 60(9)(a) to (g) of the Act.
He
continued by stating that in doing so, he will endeavour to weigh the
interests of justice against the right of the appellants
to be
released and the likely prejudice they might suffer while detained in
custody. The learned Magistrate then considered two
factors, being:
The fact that two of
the appellants suffer from diabetes, but he came to the conclusion
that it is evident from the affidavit
of mr. Angus that the said
appellants were detained at Bainsvlei Police Station where their
medical condition can be catered
and cared for.
20.2 The fact that the
appellants were recently arrested and that the investigation is
receiving high priority and should be completed
within a month or so.
[21] The said Section
60(9) of the Act reads as follows:
“
(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.”
[22] The interaction
between Section 60(4) and Section 60(9) of the Act were explained by
Edeling J in
PROKUREUR-GENERAAL,
VRYSTAAT vs RAMOKHOSI
1997(1)
SACR 127 (O) at 155 D – H:
“
Selfs
waar bevind word
dat een of
meer van die voorgeskrewe gronde of enige ander soortgelyke grond wat
aanhouding in belang van geregtigheid regverdig,
as ʼn
waarskynlikheid bestaan, dan is dit slegs ʼn voorlopige grond of
gronde ter regverdiging van weiering van die borgaansoek.
Subartikel
60(9) skryf in soveel woorde voor dat die ‘aangeleentheid’
d.w.s. die vraag of dit finaal bevind kan word
dat dit in belang van
geregtigheid is dat borgtog nie toegestaan word nie, beslis moet word
‘deur die belang van geregtigheid
op te weeg teen die
beskuldigde se reg op sy of haar persoonlike vryheid ...’.
Die bepalings van
subart 60(9) is in ʼn mate verwarrend, maar meen ek dat dit
sinvol is indien die woorde ‘
prima
facie
’
ingelees
word in die inleidende sin van subart 60(4) tussen die woorde ‘in
bewaring is’ en ‘in die belang van
geregtigheid’
waar dit daarin voorkom. Die sin sal dan as volg lees:
‘
(4)
Die weiering om
borgtog
toe te staan en die aanhouding van ʼn beskuldigde in bewaring is
prima
facie
in
die belang van geregtigheid waar een of meer van die volgende gronde
vasgestel word:’
Waar sodanige
prima
facie
situasie
wel ontstaan weens vasstelling van die voorgeskrewe vereistes, moet
dit dan opgeweeg word teen die beskuldigde se reg op
sy of haar
persoonlike vryheid soos voorgeskryf en bedoel in subart 60(9)
alvorens ʼn finale bevinding gemaak kan word.”
[23] In paragraph 57 of
the judgment in
S
vs DLAMINI; S vs DLADLA AND OTHERS; S vs JOUBERT; S vs SCHIETEKAT
,
supra
,
the following was stated by the learned Judge regarding the extremely
limited field of application for Sections 60(4)(e) and 60(8A)
of the
Act:
“
It is
important to note that ss (4)(e) expressly postulates that it is to
come into play only ‘in exceptional circumstances’.
This
is a clear pointer that this unusual category of factors is to be
taken into account only in those rare cases where it is
really
justified. What is more, ss (4)(e) also expressly stipulates that a
finding of such exceptional circumstances has to be
established on a
preponderance of probabilities (‘likelihood’). Lastly,
once the existence of such circumstances has
been established, para
(e) must still be weighed against the considerations enumerated in ss
(9) before a decision to refuse bail
can be taken. Having regard to
these jurisdictional prerequisites, the field of application for ss
(4)(e) and (8A) will be extremely
limited. Judicial officers will
therefore rely on this ground with great circumspection in the
knowledge that the Constitution
protects the liberty interests of
all. Incorrect application of the criteria listed in ss (4) be
elevating one of them unduly,
is a matter for the criminal justice
system to remedy. It must do so by applying s 60(4) – (9) in
the balanced manner prescribed
and in accordance with ‘the
spirit, purport and objects of the Bill of Rights’. The
limitation of the right is therefore
as narrowly tailored as possible
to achieve the compelling interests in maintaining public peace, and
meets the requirement of
proportionality between this purpose and the
nature of the right.”
[24] When I apply the
aforesaid
dictum
to the
facts in this matter, and considering my criticism of the learned
Magistrate`s evaluation of the available evidence, his
misdirections
on some of the relevant facts with his consequential wrong
application of the legal principles on those (incorrect)
facts, as
already alluded to in paragraph 19 above, as well as his incorrect
approach regarding the onus of second appellant and
fourth to eighth
appellants, already alluded to in paragraph 11 above, I am satisfied
that if the words “
prima
facie
”
are
to be read into the introductory sentence of Section 60(4) as
suggested in
PROKUREURS-GENERAAL,
VRYSTAAT vs RAMOKHOSI
,
supra
,
no such
prima
facie
case
has been made out in the current instance. The following dictum in
S
vs TSHABALALA
1998(2)
SACR 259 (CPD) at 269 F is therefore applicable:
“
In
cases not governed by s 60(11), therefore, it seems to me that there
must be a practical burden on the State to adduce evidence
or
information going to show that such a ‘likelihood’
exists, and to do so convincingly. If the State fails that hurdle,
ss
(9) will seldom be of any assistance to it, because the factors
mentioned in ss (9) mainly favour the accused.”
[25] In addition to the
aforesaid, I am of the view that the learned Magistrate did in any
event not properly apply his mind to
the provisions of Section 60(9)
of the Act and failed to properly consider all the relevant factors
listed therein. In this regard
I wish to refer to the following:
25.1 The Magistrate took
into consideration, correctly so, that it was evident from the
affidavit of mr. Angus that the appellants
were recently arrested and
that the investigation is receiving high priority and should be
completed within a month. However, when
properly considering Section
60(9)(b) it refers to the probable period of detention
until
the disposal or conclusion of the trial
.
In this regard mr. Angus also stated in his affidavit that after the
completion of the investigation, the prosecution will have
the
opportunity “to fully consider and prepare the case for
presentation to a court for trial”. No indication was given
of
the time period which this process will necessitate. There is a huge
difference between the period of time necessary for the
completion of
the investigation and the period of time that it will take until the
completion of the trial, which was not at all
considered by the
learned Magistrate. Furthermore I deem the following quotation from
Commentary
on the Criminal Procedure Act
,
Du Toit e
t
al
, at
p. 9-34 to be applicable in this instance:
“
Section
60(9)(a) should be interpreted in the light of the following remarks
made in
The
People (Attorney- General) vs O’Callaghan
1966 IR 501
(as cited by Nel
Borgtoghandleiding
(1987)
112):
‘
The
possibility of a speedy trial is relevant to the extent that if there
is no prospect of a speedy trial, a court may very well
allow bail
where it might not otherwise have allowed it. It cannot be too
strongly emphasized, however, that the prospect of a
speedy trial is
not a ground for refusing bail where it ought otherwise to be
granted.’”
The learned Magistrate
completely failed to attach any weight to the factor mentioned in
Section 60(9)(d), being any financial
loss which the appellants may
suffer owing to their detention. This will obviously include a
determination of the extent to
which the respective appellants need
to continue working in order to meet their financial obligations.
From the respective
affidavits of the appellants it is clear that
all of them are receiving a fixed and stable financial income per
month, which
they use to support and maintain their families and/or
their extended families. They also have a long and stable career
history
as members of the South African Police Service. In this
regard the learned Magistrate apparently also overlooked the
following
relevant part of paragraph 4 of the affidavit of mr.
Angus:
“…
according
to the knowledge of the ICD investigation team, (the accused) have
not been suspended from official duty, although this
is an internal
process of the SAPS management, and not a matter for the ICD to deal
with. It is also known that some of the accused
are married and that
all the accused have dependants which they support in some or other
manner.”
From the aforesaid it is
in my view evident that all the appellants need to continue working
in order to meet their financial obligations.
If they are to be
detained until the disposal or conclusion of the trial, they will
probably not be receiving their monthly income,
which will be hugely
prejudicial to them and their families.
[26] I consequently
conclude that with regard to first and third appellants, they
discharged their onus by proving on a preponderance
of probabilities
that the interests of justice permit their release on bail. With
regard to second and fourth to eighth appellants,
I find that the
State did not discharge its onus of establishing the existence of the
circumstances in Section 60(4)(e), read with
Section 60(8A), and/or
the likelihood of it happening and therefore I am satisfied that the
interests of justice permit also their
release on bail.
[27] I am therefore
satisfied that the learned Magistrate was wrong in his final
conclusions and finding and in his decision not
to grant bail to the
appellants.
The bail money and the
conditions of bail:
[28]
Section 60(13)(a) of the Act provides that the court releasing an
accused on bail in terms of Section 60, may order that the
accused
pay a sum of money determined by the court in question. All the
appellants indicated in their affidavits that they can
afford an
amount of R1 000.00 bail, which they will raise by means of cash
withdrawals from the bank and also loans from family
members. They
also indicated that they consider the said amount of money to be
substantial in their circumstances. No evidence
to the contrary was
put before me by the State, except that mr. Chalale argued that
should I release the appellants on bail, a
higher amount of bail
should be determined.
[29] As I have indicated
at the beginning of my judgment, it is as good as common cause
between the parties that there is no likelihood
that any of the
appellants will attempt to evade their trial. Furthermore I also bear
in mind that the intention should be to encourage
release where the
Court has in principle decided in favour of bail and therefore it
will be inappropriate and without justification
to determine a higher
amount of bail money in the circumstances of this particular matter.
[30] With regard to the
conditions of bail, Section 60(12) of the Act determines as follows:
“
The court
may make the release of an accused on bail subject to conditions
which, in the court’s opinion, are in the interests
of
justice.”
As I have indicated
earlier in my judgment, I deem it imperative that the appellants do
not visit the district of Ficksburg other
than for purposes of their
pending trial. I therefore consider it appropriate to ensure this by
means of a condition to this effect.
The other conditions of bail are
in accordance with the type of conditions which are normally
applicable in most cases and in any
event, both mr. Nel and mr.
Chalale agreed that should bail be granted, the said conditions
should be imposed.
[31] For the aforesaid
reasons I made the relevant order on 20 May 2011.
_______________
C. VAN ZYL, J
On behalf of appellants:
Adv. J. Nel
On
instructions of:
Office of the State
Attorney
BLOEMFONTEIN
On behalf of respondent:
Adv. S. Chalale
On
instructions of:
Director of Public
Prosecutions
BLOEMFONTEIN