About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2011
>>
[2011] ZAECBHC 6
|
|
Sinuka v S (CA&R06/2011) [2011] ZAECBHC 6 (12 April 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE EASTERN CAPE HIGH COURT,
BHISHO
CASE NO.: CA&R06/2011
DATE: 12 APRIL 2011
In the matter between:
MAZIZAYANDA SINUKA
versus
THE STATE
EX TEMPORE JUDGMENT
Y EBRAHIM J:
This is an appeal against the refusal
of the Magistrate in the court
a quo
to grant the appellant
bail. In the court
a quo
the appellant and three other
accused were charged with two offences, namely: firstly, a
contravention of section 18(2)(a) of the
Riotous Assemblies Act 17 of
1956, referred to as statutory conspiracy, in that the accused
conspired with any other person to
aid or procure the commission of
or to commit any offence, whether at common law or against a statute,
etc. The second charge
against the accused is one of attempted
murder.
Accused no. 1 and accused no. 2
together with the appellant, who was accused no. 3 in the court
a
quo
, applied for bail. Accused no. 3 did not launch a
similar application. The evidence tendered in respect of the
bail
application was basically that of accused no. 1 and accused no.
2 and the appellant. I do not intend dealing with the evidence
of accused no. 1 and accused no. 2 since that is not relevant in the
present bail appeal.
Insofar as the appellant is concerned,
he testified and in essence denied the charges against him and
presented evidence of his
personal circumstances. He indicated
clearly that he was pleading not guilty to both the charge of
conspiracy and that of
attempted murder.
In answer to the appellant’s
evidence the State tendered the evidence of an Inspector Sonwabile
Nkosiyani who holds the rank
of a colonel in the South African Police
Services and is stationed at the Organised Crime Unit in East
London. I refer
to him as an inspector because until
recently that was the designation used but the South African Police
Services has now adopted
previous rank descriptions and therefore he
is now referred to as a Colonel. He has been in the South
African Police Services
for the past 30 years. I do not intend
recounting the evidence of the appellant or that of Colonel Nkosiyani
but shall refer
to some aspects of it during the course of this
judgment.
The offences of which the appellant
has been charged are Schedule 5 offences and there is no dispute
insofar as this is concerned.
In view of this it places an
onus
on the appellant to show why it was in the interests of justice
that he should be admitted to bail.
Both charges relate to an incident
which involved the complainant being shot. The complainant is
the spouse of the appellant.
From the evidence it emerged
that they are presently engaged in divorce proceedings and that the
appellant no longer resides at
the common home. It also emerged
from the evidence that there is a great deal of friction between the
complainant and the
appellant, so much so that at various stages each
obtained a protection order against the other. These
orders, of course,
were obtained in the Magistrate’s Court.
The record reveals there was some difficulty in tracing these orders
because
it appears that the records had been destroyed or could not
be found. But, at the stage when the prosecutor was addressing
the court on the merits of the application he sought leave to
introduce an order that the complainant had obtained against the
appellant. It does not appear that the appellant’s legal
representative raised any serious objection to this and the
Magistrate therefore allowed it to be admitted. I have some
difficulty with the admission of the protection order.
It is
apparent from the opposition that the State has against the appellant
being granted bail that it centred very largely on
the fact that such
a protection order existed.
Mr Maseti represented the appellant
today and Mr Gounden appeared for the respondent, namely the State.
I indicated
that I have some difficulty with the admission of this
order since Mr Gounden has placed great emphasis on the fact that
such an
order was granted and that this played a central role in the
State’s opposition to the appellant being granted bail.
At the bail hearing the prosecutor
informed the court that there were four grounds upon which the State
was opposing bail.
The first was there was the likelihood that
the accused, if released, might commit further offences.
Insofar as the State
was concerned this applied to accused no. 1 and
accused no. 2 as well as the appellant because it did not seek
to differentiate
between the three. The second ground was
that there was a likelihood the accused would evade court proceedings
and
not return if released on bail. Here again no
differentiation was made between accused no. 1, accused no. 2 and the
appellant.
The third ground was there was the likelihood, or a
possibility, that the accused would influence the State witnesses and
the investigation
in the present case. This similarly, as far
as the State was concerned, applied to all three of the accused who
applied for
bail. The fourth ground, which was restricted to
the appellant, was there was a likelihood he would undermine the
objectives
or the proper functioning of the criminal justice system
if released on bail.
In the appeal before me, Mr Gounden,
in his heads of argument, identified that the only issue which this
court had to decide was
whether or not the magistrate in the court
a
quo
exercised his discretion correctly in refusing the appellant
bail. Mr Maseti, on behalf of the appellant, has relied on
other
grounds, but conceded that he did not dispute that the
submission made by the State was correct. I agree with
Mr Gounden
that this is the issue which this court is confronted
with.
Mr Gounden has gone to great lengths
to deal with a number of other issues in an attempt to paint the
picture of the appellant that,
to my mind, is not apparent from the
evidence placed before the court
a quo.
I have no
argument with Mr Gounden that this court is not required at this
stage to determine the guilt or innocence
of the appellant, but
merely whether it is in the interests of justice that he be released
on bail. In this regard, as I
have indicated, the
onus
is
on the appellant.
In looking at the judgment given by
the magistrate it is evident that he recognised that the four grounds
of opposition to grant
him bail were issues that he had to address.
Indeed he did so, but very perfunctorily and in very cryptic terms on
pages 178 and 179 of his judgment. I find it necessary to
repeat these grounds and what the magistrate said and these are
the
following:
“
It was the
State’s submission as the respondent in this matter, that there
is a likelihood on the part of the applicant no.
3 to, if he is
released on bail, to go out and make some other means of committing
further offences against this person, they have
been in quarrel for,
for a long time. That was the suggestion of the State.
And also the court on the other side
feels that the State has made a
correct submission.
Then the second one, the standing of
trial, that one was not in issue. Everybody was adamant that
there were will be no problem
for him to run away from the trial.
Then the third issue, the one of witnesses also now there was a
submission by the State
and the basis of that submission is that he
should not be granted bail. And the basis for that is that the
victim in this
matter is the applicant’s wife.
Then there is also another witness who
is staying with the wife of the applicant will also be a witness in
this matter. That
was the submission as well that there is a
likelihood that the applicant no. 3 will influence or try to
intimidate the victim who
is this wife in the matter as well as the
witness. And it is the conclusion of the court that that
submission which is made
by the State is the correct one. And
that factor has been proven by the State.
Then there is a last one the one of
undermining the criminal justice system. I have said in my
judgment that we have got more
questions than answers. In the
manner in which the applicant being the sophisticated somebody,
intelligent, hardworking,
in the manner he has arranged this matter
getting to no. 3 so that he may do things which are illegal which are
not in the process
of the law in trying to get rich or to cause his
wife to disappear. And he did not even worry about asking in
the manner
in which this was supposed to be done, no time frames.
And he decided to drop this without
even informing this person even after he hear the shocking news that
his wife has been attacked
and shot at he continued with business to
go to PE.”
The magistrate has made some other
comments in relation to this latter aspect and later comments as
follows:
“
Now, are we
supposed in court now to allow people to undermine the criminal
justice system by doing illegal things in trying to
solve their
problems. Are we allowed to do that? I feel as well
that this one if the applicant no. 3 in this
matter can be granted
bail the criminal justice system be undermined and in conclusion the
applicant no. 3 as well is refused bail.”
In dealing individually with the
conclusions the magistrate has reached, it was conceded, rather
reluctantly at first, by Mr Gounden
that the magistrate had in
fact not provided reasons in respect of any of the conclusions he had
reached. Mr Gounden nevertheless
submitted it was apparent that
the magistrate must have had regard to the evidence that had been
tendered in order to reach these
conclusions. That may very well be
so, but in our criminal justice system a judicial officer is required
to furnish reasons to
indicate why he or she has reached a particular
conclusion. It is not sufficient merely by inference to refer
to the fact
that there was evidence and to say therefore I agree with
the conclusion that the State has reached. If it was that easy
I would not have to give reasons for my judgment today and I could
simply just indicate what my conclusion is and dispense with
the
matter. I wish that it was that easy but obviously it is not
so.
Now in reaching the conclusion that
there was a likelihood on the part of the appellant, if he was
released on bail, to commit further
offences, the magistrate, as I
have stressed, did not indicate on what facts he arrived at this
conclusion. To be honest,
I can understand his difficulty
because no such facts were placed before the court
a quo.
There was nothing to indicate that if the appellant is released on
bail that he would go out and commit further offences,
whatever those
may be. In this respect Mr Gounden sought to refer to the
protection order and said this was an indication,
because the
complainant had been shot, that the appellant was likely to commit
further offences. I regret to say the logic
escapes me.
If it is so that a person is charged with a particular offence and
appears in court and seeks bail, it cannot
be that the State can
simply say that because he has committed the offence there is the
likelihood he will commit further offences
of that nature or any
other nature. If this was the approach that we are required to
adopt then not a single accused would
ever receive bail. The
fact is that in the absence of any facts to substantiate that there
is a likelihood that the appellant
will go out and commit further
offences, a court is obliged to accept that this ground has not been
proved, or been shown as probable.
The second ground, namely that the
accused would not stand trial, was rightly conceded by the magistrate
as not being an issue,
and by that I understand that he was
indicating that the State was not relying on this as a ground of
opposing the appellant being
released on bail. There is in fact
no question of any evidence suggesting that he would not stand
trial.
The third ground is that there was a
likelihood that the appellant would influence or try to intimidate
the complainant as well
as the witness referred to by the
magistrate. Who this other witness is, is certainly not
apparent from the record.
There is an oblique reference that it
might have been one of the children, but as was correctly pointed out
by the legal representative
for the appellant, and re-emphasised by
Mr Maseti today, there is no indication that the appellant was
on the scene when the
complainant was shot. There can be no
likelihood therefore of someone identifying him as having been
present at the scene
of the crime. Here again the magistrate,
apart from stating the obvious, has not provided any reasons to
indicate why there
is such an apprehension that the appellant would
interfere with any witness.
What has clouded the whole issue in
this matter is the fact of the protection order that the complainant
obtained against the appellant.
In this regard the court had to
point out to Mr Gounden that the appellant himself had obtained
a protection order in the
Magistrate’s Court against the
complainant. It is apparent to me that the complainant and the
appellant are at extreme
loggerheads and that there is obviously a
great deal of animosity between the two of them. Of this there
can be no doubt.
It is so, that on the face of it the appellant
appears to be an intelligent individual if one goes according to his
education –
though education is not necessarily a sign of
intelligence. But, be that as it may, I will accept that as he
is a school
principal and an individual who is now studying for a
Master’s degree, that one would expect him to show a greater
deal of
understanding in relationships with other individuals.
But, in my long experience in the law, common sense and education do
not often meet. Far too often people who have great levels of
education are by no means necessarily the most intelligent
individuals, nor are they exceptional in personal relationships.
In fact the opposite might very well be true in respect
of some
individuals who have great intellect. One need merely look at
history to see that there were people of great intellect
who had very
little skill in dealing with other human beings and acted in a most
rash manner. I do not see that because the
appellant is
considered to be a highly educated person necessarily translates into
the fact that he has not acted very rationally
when one would have
expected him to do so. The facts of each circumstance must be
judged on its own merits. There is
no evidence of any nature to
suggest that there is a likelihood that the appellant would interfere
with any other witness.
In any event, if there is such
likelihood a court, in granting bail, could set a condition which
would hopefully prevent the appellant
from coming close to his wife,
who is the complainant, and in that manner prevent any kind of
interference with her.
The last ground, namely that of
undermining the criminal justice system, is one that I found
difficult to understand. I am
not sure what the State has
really meant by this and I am engaging in guesswork to understand
what is meant. From what I
can see it appears that the State is
referring to the fact that the appellant had approached a Sangoma to
produce some muti to
have his wife disappear from the house and that
as far as the State was concerned he could do this again and that
might be undermining
the criminal justice system. You must
forgive me but I cannot follow this line of reasoning at all.
The appellant is
an individual who obviously believes in Sangomas.
He conceded that he did approach one to ask for muti to have his wife
disappear
from the house and was even prepared to allow the Sangoma
to injure his wife, if necessary, to get to her to move from the
house.
He was at pains, when questioned by the prosecutor in
the court
a quo
, to deny that this entailed his wife being
shot at and killed or an attempt to kill her. He said that he
had never given
the Sangoma that kind of mandate. This is an
issue for the State to prove at the trial. I am not required to
determine
whether that is in fact so, or not, but merely to look at
the probabilities at this stage. There is nothing to indicate
that
the appellant’s version is not probable other than
speculation that he had told this Sangoma to make her disappear
permanently,
and by that I mean causing her death. In any event
the evidence presented by the State in this respect is, to put it
mildly,
like looking at murky water. It is difficult to see
what is in the water but you have a general idea that the water is
not
clean. The 1
st
and 2
nd
accused, if I
am not mistaken, testified that they had been approached by the 3
rd
accused to do away with the complainant. Neither of them, in my
reading of the record, was able to say who the person was
apart from
the fact that it was accused no. 3 who had given such an
instruction. Accused no. 3 obviously did not testify
at
the bail hearing because he did not apply for bail. He,
therefore, could not implicate the appellant. This oblique
reference by accused no. 2, I think it is, to the fact that there was
a person who wanted his wife removed does not in my mind
amount to a
sufficient probability that one can reach the conclusion that the
appellant was involved with that. It may be
at the trial that
further evidence is presented that paints a different picture, but I
am not required to determine that today.
In my view, the Magistrate did not
exercise his discretion properly or judicially in respect of any of
the grounds upon which the
State was opposing bail.
Indeed he failed to apply his mind judicially to the facts and failed
to analyse those facts
in order to reach a conclusion whether it was
in the interests of justice or not that the appellant should be
released on bail.
In my view, the appellant has shown
that it is in the interests of justice that he be released on bail.
The investigating
officer conceded that he was a principal at a
school, that his presence there was needed, that it might cause some
disruption to
the education of the children at the Primary School if
he was not present. But apart from all that, it is not
sufficient
for the State merely to come to court to say that it is
opposing bail and for the court slavishly to follow that submission.
The court must apply its mind to the facts, analyse those, and reach
a decision judicially in terms of what those facts present.
In
my view, the Magistrate failed to do this and his refusal of bail was
improper and not substantiated by the facts before him.
I am
satisfied, therefore, that it is in the interests of justice that the
appellant be granted bail.
In the circumstances, the order I am
issuing is the following:
The appellant is granted bail in the
sum of R5 000-00, subject to the following conditions:
1.
That the appellant shall not have any
contact with his wife, who is the complainant, or any other State
witness.
2.
That the appellant shall not be within a
distance of one (1) km of the house where the complainant resides,
namely 2[...] H[...]
Crescent, Bhisho.
3.
That the appellant shall attend court on
every date of the criminal proceedings relating to the charges
preferred against him until
the conclusion thereof.
Y EBRAHIM
JUDGE OF THE HIGH COURT