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[2011] ZAKZDHC 36
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S v Sithole and Others (7032/11) [2011] ZAKZDHC 36; 2012 (1) SACR 586 (KZD) (19 August 2011)
REPORTABLE
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 7032/11
In the matter between
Sibusiso Sithole
…...........................................................
First
Appellant
Cyril S Ngema
….........................................................
Second
Appellant
Nkululeko Sithole
…........................................................
Third
Appellant
and
The State
…...........................................................................
Respondent
JUDGMENT
19 August 2011
Steyn J
[1] This is an appeal
against the refusal by the Ntuzuma district court, to grant the
appellants bail.
1
The appellants are
charged with one count of robbery with aggravating circumstances in
terms of
section 1
of the
Criminal Procedure Act 51 of 1977
.
2
The offence is a listed
schedule 6 offence in terms of the Act.
[2] The appellants were
arrested on 10 May 2011 and brought before the court for a bail
application on 23 May 2011. The application
was refused by the
district magistrate and the appellants now appeal against this
decision.
[3] On 10 August 2011, I
perused all the papers in the court file and noticed that counsel for
the State failed to file any written
heads of argument. What was
filed on behalf of the State, is a notice to abide by the decision of
the court. It was apparent that
the State not only failed in their
obligation to assist the court but also failed to adhere to the
practice directives of this
division. I informed the State counsel
that I expected the State to comply with the directives more
specifically Practice Directive
23,
3
which reads as follows:
“
23.
Bail Appeals
These are heard by a single judge
both in Pietermaritzburg and Durban. While the judges of this
Division recognise that these matters
are inherently urgent, it is
nonetheless necessary that appeals be put before the court in an
orderly and structured manner. The
following practice will henceforth
be followed:
When an appeal is ripe for
hearing, that is to say, that the record of the proceedings has
been transcribed and certified as
correct, the magistrate’s
reply to the notice of appeal has been obtained and the record has
been paginated and indexed
the appellant shall be entitled to lodge
such record with the registrar and at the same time apply for a
date of hearing.
The registrar shall allocate a
date which is not less that five (5) court days from the date of
the application. The registrar
shall then place the matter before
the senior civil judge who generally speaking, will allocate it to
the judge presiding in
the motion court on that day. Where however
the record of the proceedings before the magistrate is voluminous
and in the opinion
of the registrar will require extensive reading
and preparation, the registrar shall allocate a date not less than
10 court
days from the date of the application.
The parties shall lodge brief and
concise heads of argument at least two court days before the
hearing of the appeal.”
[footnotes omitted]
The State hereafter filed
written heads albeit not in accordance with the time limit.
Ad the obligations
and duties of prosecutors
[4] Before I deal with
the merits of the appeal I wish to refer to a disturbing feature
which I had occasion to experience in this
matter and in another
matter that recently served before me.
4
In both these matters the
State acted with complete disregard for its duties and appreciation
of its obligations.
5
It remains the duty of
the State to put all relevant evidence before a court hearing a bail
application. In this regard I align
myself with the views expressed
by Kgomo JP in
Nteeo
and the reference to the
duties of a prosecutor. In the same vein Traverso J, as she then was,
expressed the same sentiments in
relation to a prosecutor’s
duties in
S
v Van Huysteen
:
6
“
[D]ie
plig om toe te sien dat reg en geregtigheid tydens enige
hofverrigtinge geskied, rus op al die beamptes van die hof. Dit is
nie ʼn plig wat tot die voorsittende beampte beperk is nie. As
die Staat nie alle feite voor die landdros plaas nie, kan reg
en
geregtigheid nooit geskied nie.”
7
[5] I do not intend
re-visiting the role that should be fulfilled by prosecutors in
dealing with bail applications and bail appeals.
It is however
important to bear in mind what has been authoritatively stated by the
Constitutional Court in
Carmichele
v Minister of Safety and Security and Another
:
8
“
[72]
…However, prosecutors have always owed a duty to carry out
their public functions independently and in the interests
of the
public. Although the consideration of bail is pre-eminently a matter
for the presiding judicial officer, the information
available to the
judicial officer can but come from the prosecutor. He or she has a
duty to place before the court any information
relevant to the
exercise of the discretion with regard to the grant or refusal of
bail and, if granted, any appropriate conditions
attaching thereto.
[73] In considering the legal duty
owed by a prosecutor either to the public generally or to a
particular member thereof, a court
should take into account the
pressures under which prosecutors work, especially in the
magistrates’ courts. Care should be
taken not to use hindsight
as a basis for unfair criticism. To err in this regard might well
have a chilling effect on the exercise
by prosecutors of their
judgment in favour of the liberty of the individual. There are far
too many persons awaiting trial in our
prisons either because bail
has been refused or because bail has been set in an amount which
cannot be paid. We can do no better
in this regard than refer to the
following passage which appears in the United Nations Guidelines on
the Role of Prosecutors:
‘
In the
performance of their duties, prosecutors shall:
…
Protect the public interest,
act with objectivity, take proper account of the position of the
suspect and the victim and pay attention
to all relevant
circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect
; . . .”
[74] That said, each case must
ultimately depend on its own facts. There seems to be no reason in
principle why a prosecutor who
has reliable information, for example,
that an accused person is violent, has a grudge against the
complainant and has threatened
to do violence to her if released on
bail should not be held liable for the consequences of a negligent
failure to bring such information
to the attention of the Court.
If
such negligence results in the release of the accused on bail who
then proceeds to implement the threat made, a strong case could
be
made out for holding the prosecutor liable for the damages suffered
by the complainant
.”
9
[footnotes omitted]
(My emphasis)
A close scrutiny of the
Carmichele
judgment shows that there is a duty on prosecutors
to be pro-active in taking steps to protect the community against any
criminal
conduct and hence they should actively participate in the
bail process.
[6] The duties and
obligations of the State should be assessed in the light of the
aforesaid
dicta
. There can be no doubt that State counsel has
a public duty to place all relevant facts before a court deciding an
appeal and that
the State in
casu
failed in its duty when it
merely filed a notice to abide by the court’s decision.
[7] The approach of the
State from the time when the application was heard in the court
a
quo
till the hearing of the bail appeal shows a clear disregard
for its obligations. There is no doubt in my mind that in a
traditional
common law criminal justice system, prosecutors serve as
the gate keepers of the system. Not only do they evaluate the conduct
of the police and the strength of the State’s case, they
actively present the case to the court and represent the interests
of
the society throughout the proceedings.
[8] Given the State’s
accountability to the community in a democratic society and its
responsibility for the protection of
the rights of victims of crimes,
it is to be expected that the State would act in accordance with such
responsibility when putting
the necessary facts before the court
hearing the bail application and hearing the bail appeal.
[9] Sadly in this case it
was left to the presiding officer to act in accordance with the law
and be accountable.
Ad the merits of
the appeal:
[10] On behalf of the
appellants, Mr Sibisi, submitted that the appellants proved the
existence of exceptional circumstances permitting
their release on
bail because:
“
(a) The
State was not opposed to the release of the appellants on bail;
(b) The investigating officer was
not opposed to the release of the appellants on bail;
(c) The appellants evidence
(submitted by way of affidavits) was not contested by the State;
(d) Except for the vague
allegations against the appellants the evidence against them is weak.
It is submitted that this weakness
constitutes an exceptional
circumstance.”
[11] Mr de Klerk, acting
on behalf of the State, submitted that in light of the fact that the
police did not oppose bail and in
light of the evidence before the
court
a quo
, the State equally does not oppose the appellants’
appeal against the refusal of bail.
Interestingly, neither
counsel for the appellants nor counsel for the State even considered
the approach followed by the presiding
officer in evaluating the
evidence before the court and whether the appellants succeeded in
showing the existence of ‘exceptional
circumstances’. No
criticism was levelled at the judgment or the reasons delivered by
the learned Magistrate for refusing
bail.
[12] It is evident that
what is required of this court in terms of
section 65(4)
of the Act
is that before setting aside any decision on bail, this court should
be satisfied that the lower court was wrong in
its decision.
10
[13] The record reveals
that the learned Magistrate applied her mind to the burden cast upon
the applicants in stating:
“
[T]aking
into consideration the allegations facing the appellants, the gravity
of the force used against the complainant, which
was extreme. A
firearm was used and furthermore she was tied up.
Taking into consideration all the
factors, the personal circumstances of the appellants the nature of
the office and the allegations
faced by the appellants, the
appellants failed to show this court on a balance of probabilities
the exceptional circumstances in
which the interests of justice
permit their release. In any event it is trite that in schedule 6
offences, where exceptional circumstances
have to be proved, the use
of affidavit evidence is insufficient to prove exceptional
circumstances”
[14] The success of this
appeal is therefore dependent on whether the appellants, applicants
in the court
a quo
, discharged the
onus
, in terms of
subsection 60(11) of the Act.
[15] It is averred by the
State in the charge sheet that the appellants unlawfully and
intentionally assaulted the complainant,
Thobeka Gumede, and robbed
her of cash to the amount of R13 315, a watch and earrings, property
belonging to her, and under aggravating
circumstances where they
pointed a firearm at the complainant.
The State in its
affidavit listed the following brief facts that linked the accused,
now appellants, with the alleged commission
of the offence. In
relation to the first appellant:
“
He is the
owner of the moter vehicle that was seen by the complainant on the
scene of the crime. While (sic) the suspect after robbing
the
complainant run to and enter the car and drove away after robbing her
cash amount of R13 315, a gold watch and gold earrings.”
In relation to the second
appellant the following facts were listed:
“
He was
pointed out by his friend who is also an accused in this case as the
person he was with and they robbed the complainant at
his work
environment and took R13 315, a gold watch and earrings. The gold
watch and earrings were recovered at his place . . .
.”
In relation to the third
appellant the following was said:
“
He was
with the other suspects on 06/05/2011, who robbed the complainant at
the work place and took R13 315, a gold watch and earrings.”
The affidavits filed on
behalf of the State leave much to be desired. The affidavits however
do reveal that the evidence against
the appellants, is everything but
weak. I am not persuaded by Mr Sibisi’s submission that it
should be regarded as weak.
[16] In
S
v Mathebula
11
the Supreme Court of
Appeal stated the following in relation to
onus
:
“
[I]n
order successfully to challenge the merits of such a case
in
bail proceedings an applicant needs to go further:
he
must prove on a balance of probability that he will be acquitted of
the charge
:
. . .
Nor is an attack on the prosecution
case at all necessary to discharge the onus; the applicant who
chooses to follow that route
must make his own way and not expect to
have it cleared before him. Thus it has been held that until an
applicant has set up a
prima facie case of the prosecution failing
there is no call on the State to rebut his evidence to that effect: S
v Viljoen at
561f-g.”
12
(My emphasis)
[17] The 1997 bail
legislation introduced new provisions to the Act and a new approach
to the consideration of the factors playing
a role at the bail
hearing more than ever when it comes to offences listed in Schedule
6. Our Constitutional Court dealt with this
approach definitively in
S v
Dladla and others
,
S v
Joubert, S v Schietekat
.
13
“
[64]
These are factors, therefore, which in the past would have been
considered in determining whether bail should be granted. However,
s
60(11)(a)
does more than restate the ordinary principles of bail. It
states that where an accused is charged with a Sch 6 offence, the
exercise
to be undertaken by the judicial officer in determining
whether bail should be granted is not the ordinary exercise
established
by
ss60(4)
-(9) and required by
s 35(1)(f))
in which the
interests of the accused in liberty are weighted against the factors
that would suggest that bail be refused in the
interests of society.
Section 60(11)(a)
contemplates an exercise in which the balance
between the liberty interests of the accused and the interests of
society in denying
the accused bail,
will
be resolved in favour of the denial of bail, unless ‘exceptional
circumstances’ are shown by the accused to exist.
This exercise
is one which departs from the constitutional standard set by
s
35(1)(f).
Its
effect is to add weight to the scales against the liberty interest of
the accused and to render bail more difficult to obtain
than it would
have been if the ordinary constitutional test of the ‘interest
of justice’ were to be applied.”
14
(My emphasis)
[18] Previously, an
application for bail was regarded as
sui
generis
and
the accused bore the
onus
on a balance of
probabilities to show why he should be released.
15
After the commencement of
the interim Constitution
16
a host of decisions
followed, all considering
onus
on the parties in a bail
application.
17
The 1997 legislation
represents a conscious break from the practice that existed prior to
the legislation coming into operation.
It requires diligent
prosecutors to present all relevant evidence before a presiding
officer hearing the application so that the
presiding officer can
make an informed decision.
[19] It is true that the
Constitutional Court, however, in
S
v Dlamini
;
S v
Dladla and Others
;
S v
Schielekat
18
did not resolve the issue
of
onus
.
Kriegler J dealt with it as follows:
“
For the
present it is unnecessary to resolve the question whether there is an
onus in bail proceedings and, if so, its incidence.
The current cases
are governed by ss 11, where there is undoubtedly a burden cast upon
an applicant for bail.”
19
[20] Despite the
aforesaid it is necessary in the context of s 60(11)(a) for an
applicant to persuade the Court that ‘exceptional
circumstances’ are present that in the interests of justice
permit his release. The concept ‘exceptional circumstances’,
which has not been defined, has meant different things to different
people.
20
In my view, what is
expected of a court is to exercise a value judgment in accordance
with all the evidence and applying the relevant
legal criteria.
21
[21] In the present
matter, the learned magistrate fully apprised herself of her duties
and in doing so she considered the circumstances
listed by the
applicants including the strength of the State’s case. In my
view, the learned magistrate would have failed
in her duty, had she
merely accepted the attitude of both the state prosecutor and that of
the investigating officer. It is evident
from the record that neither
were
au
fait
with
the implications of the amended bail legislation or seriously
considered their obligations and their accountability to the
community. The legislature considered it necessary to burden the
accused with an
onus
in Schedule 6 cases, and
hence the question is very simple, the appellants have not succeeded
in discharging their onus. None of
the appellants gave
viva
voce
evidence.
I fail to see how they could be convinced that they have discharged
the
onus
that rested on them in
terms of the legislation.
[22] It must follow that
on an analysis of the evidence as a whole, the probative value of the
statements produced by the appellants,
and their burden of
establishing ‘exceptional circumstances’, that the
appellants have not succeeded in demonstrating
that the court below
was wrong and that the decision should be set aside.
22
[23] In the circumstances
the following order is made:
1. The appellants’
appeal to be released on bail fails and is accordingly dismissed.
2. The registrar is
requested to forward a copy of this judgment to the Director of
Public Prosecutions (KwaZulu-Natal) for consideration
of the remarks
made above concerning the duties of prosecutors in conducting bail
applications.
____________________________
Steyn J
Date of Hearing: 12
August 2011
Date of Judgment: 19
August 2011
Counsel for the
Appellants: Adv Sibisi
Instructed by: Mkhize
Attorneys
Counsel for the
Respondent: Adv de Klerk
Instructed by: The Deputy
Director of Public Prosecutions, Durban
1
See
case number M1305/11.
2
Hereinafter
referred to as ‘the Act’.
3
See
Erasmus ‘Superior Court Practice’ Revision Service 36,
Practice
Manual:
KwaZulu-Natal.
4
See
case
number 2853/2011.
5
See
S
v Nteeo
2004
(1) SACR 79
(NC) para 5.
6
2004
(2) SACR 478
(C).
7
Ibid
para
11.
8
[2001] ZACC 22
;
2001
(10) BCLR 995
(CC).
9
Ibid
at
1019D-1020E.
10
S
v Green and Another
[2006] ZASCA 3
;
2006 (1) SACR 603
(SCA);
S v De Abreu
1980
(4) SA
94
(W).
11
2010
(1) SACR 55
(SCA).
12
Ibid
at
para 12.
13
[1999] ZACC 8
;
1999
(2) SACR 51
(CC).
14
Ibid
at para 64.
15
See
S v Hlongwa
1979 (4) SA 112
(D).
16
The
interim Constitution of the Republic of South Africa, Act 200 of
1993
.
17
See
Ellish v Prokureur-Generaal
,
Witwatersrand Plaaslike
Afdeling
1994 (2)
SACR
579
(W);
Magano and Another v District Magistrate Johannesburg
and Others
(1)
1994 (2) SACR 304
(W);
S v Mbele and Another
1996 (1) SACR 212
(W);
S v Vermaas
1996 (1) SACR 528
(T).
18
[1999] ZACC 8
;
1999
(2) SACR 51
(CC). For a critical discussion of the case see ‘An
Evaluation
of the SA Constitutional Court’s decision on bail’ by
Sankin, Steyn, Van Zyl Smit and Paschke in ‘Resolving
the
tension between crime and human rights: An Evaluation of European
and South African issues’ Sankin
et al
(2001) at
217-241.
19
Op
cit
at para [45], footnote 74 of the judgment.
20
See
S v C
1998
(2) SACR 721
(C);
S v H
1999
(1) SACR 72
(W) at 77b-i;
S v
Schietekat
1999 (1) SACR 100
(C);
S v Mokgoje
1999 (1) SACR 233
(NC);
S
v Botha en ʼn Ander
2002 (1) SACR 222
(SCA) at 2291 –
2300;
S v Bruintjies
2003 (2) SACR 575
(SCA) at 577 c-I;
S
v Josephs
2001 (1) SACR 659
(C);
S v Viljoen
2002 (2)
SACR 550
(SCA) para 15.
21
See
section 60(4) of the Act that provides for the grounds to be
considered:
“
(a)
Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public
or any
particular person or will commit a Schedule 1 offence;
(b)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial;
or
(c)
where there is the likelihood that the accused, if he or she were
released
on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence; or
(d)
where there is the likelihood that the accused, if he or she were
released
on bail, will undermine or jeopardize 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.”
22
C
f
S v Porthen and Others
2004
(2) SACR 242
(C), at para [17].