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[2009] ZAGPPHC 234
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Lekgau v S (A388/2009) [2009] ZAGPPHC 234 (15 June 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
no.: A388/2009
DATE:15/06/2009
In
the matter between:
PHILIP
DAILE
LEKGAU
......................................................................................
APPLICANT
vs
THE
STATE
...........................................................................................................
RESPONDENT
JUDGMENT
Delivered
on. 15 June 2009
POTTERILL
AJ
1.
Before me is an appeal against the refusal of bail by the Regional
Magistrate D Makgoba. In terms of paragraphs 2,3 and 4 of
the grounds
of appeal this appeal is against the second and third refusal of bail
on new facts In argument it was expanded to include
an appeal against
the first bail application. To understand last mentioned it is
necessary to set out the background to this appeal.
2.
The appellant was arrested on 8 April 2006 at the Lebobombo
Borderpost, Komatiport, Mpumalanga. This was due to the fact that
the
present Investigating Officer. Sergeant Kalis had black-listed the
appellant at all borders. The appellant is charged with
24 counts,
inter alia, housebreaking, robbery with aggravating circumstances,
attempted murder, theft of motor vehicles, abduction
and escaping It
was also put to me that he is also on trial at Ladysmith and another
trial in the Pretoria Regional Court. He is
also in custody in these
cases. On 30 May 2006 he brought the first application for bail This
application was refused. On 9 October
2007 a bail application on new
facts was heard and refused on 15 October 2007. On 21 November 2008 a
further bail application on
new facts was heard and refused. The
hearing of the matter is well on its way; 30 - 40 witnesses have been
led, but will due to
the magnitude of charges and number of co-
accused not be finalized within the year. He has on at least 13
charges been linked
with fingerprints and expert testimony thereto.
3.
I am not now, in 2009. considering an appeal against the first and
second refusal of bail. If the appellant was aggrieved with
the
decision of the Regional Magistrate, he in 2Q06 and 2007 could have
exercised his fundamental right of appealing against these
decisions
If appellant considered that the Magistrate committed a reviewable
irregularity he could have approached the High Court
in terms of Rule
53 In Shefer v Director of Public Prosecutions Transvaal, And Another
2004(2) SACR 92 (T) it was found that there
where an appeal procedure
is provided for it cannot be circumvented. In this case one appeal
cannot be utilized to circumvent two
appeals that should have been
brought earlier. The Court went further and found that with rule 65
governing bail appeals there
is very little room for the Court to
exercise common law powers.
4.
In S v Maliwa and Others 1986(3) SA 721 WLD it was found that a bail
appeal in terms of s65 is analogous to an ordinary criminal
appeal.
In S v Ho 1979(3} 734 it was decided that in bail appeals the lax
habit of making ex parte submissions form the Bar should
not be
tolerated. The first, very general, ground of appeal was argued
relates to the first appeal. This ground is so vague that
it is
unhelpful and in no way links the first bail application to this
appeal. There simply lies no appeal against the first bail
application. Even if there were grounds the appeal against the first
and second bail refusals are not to be entertained for the
reasons
set out in paragraphs 3,5 &6
5.
Bail appeals have been time and again classified as prima facie
urgent. The appellant however after respectively 3 and 2 years
only
now appeals against these refusals There is not a single reason
forwarded why this is only done now. With no reasons before
me I can
not find that they need to be pursued now.
6.
Furthermore even if I should entertain all three appeals one appeal
could become a bar to the other two appeals If I should find
that the
first bail appeal should not have been refused [which I have not
considered] then the factual situation is that the second
and third
applications were refused: he would have to stay incarcerated. There
is simply no basis to entertain one appeal against
three bail
applications.
7.
I am prepared to entertain an appeal against the last bail
application This application was brought and refused on 21 November
2008 and the appeal thereto was launched during March 2009. It is
thus launched within a reasonable period. Furthermore it is addressed
in the grounds of appeal. An urgent application had also been
launched in the meantime setting forth some grounds for the lateness
of the appeal.
8.
The grounds of appeal pertinent to this bail appeal is that the
Magistrate erred in: “….[1] failing to consider
that the
appellant had adduced evidence based on new facts in the second and
third applications for bail that indeed showed new
facts which is 1”
exceptional circumstances " which permits his interest of
justice [sic] ( and his release on bail
. “ [Paragraph 2] And
in paragraphs 5&6:” The learned Magistrate erred by
holding subsequently in the third bail
application based on new facts
that the appellant will not be permitted to move another bail
application and has to give prior
notice to a new application for
bail for the facts upon which he relies to substantiate his
application for bail. This finding
in itself is irregular and
unconstitutional. " The learned magistrate erred by not
considering all the factors pertaining
to the various applications
for bail in toto and having disregarded all the relevant evidence as
so tendered by the applicant and
his witnesses.”
9.
In his affidavit the appellant starts off by saying he has been moved
to C-max with a lack of privileges affecting his mental
state. He has
also developed a heart condition that requires specialist care which
cannot be treated in prison. “I consulted
Dr Hlope who after
medical examination expressed severe concern about a possibility of a
heart attack and he referred me to a specialist
cardiologist at the
Kalafong Hospital on the 29 th of September 2008 . " He then
states that the Investigating Officer who
had knowledge of the
appointment failed to pick him up. He again failed to pick him up for
an appointment for the 6 th of October
2008. The specialist is now
refusing to book another appointment due to his non-appearance.
Furthermore his relationship with his
wife and children is
deteriorating due to his incarceration at C-max. His businesses are
suffering and he is on the verge of bankruptcy.
He will no longer be
able to employ his legal team and he does not have confidence in the
legal aid board, ' I humbly confirm that
in my previous bail
applications I raised the possibility of house arrest as a possible
condition as proposed 62(f) of the Criminal
Procedure Act. " He
then refers to a statement by a correctional officer, Mr Ngaxu
Nocideem, for his suitability for placement
under community
corrections as proposed in section 62(f). I accept that he is in fact
referring to the statement of Ngaku Nicodemus
Seakamala.
10.
The state handed in an affidavit form the Investigating Officer in
which he states that he took the Appellant to an outside
hospital. He
attaches 4 temporary transfer of detainee [SAP 127] forms as proof
that on 29 April 2008, 12 May 2008, 23 June 2008
and 7 July 2008 he
in fact did take the appellant to a doctor. Each time the appellant
informed the investigating officer that
there is nothing medically
wrong with him. but is doing this to keep the investigating officer
from working and with this he will
force the investigating officer to
return him to "Newlock. ” The investigating officer after
6 months refused to take
the prisoner to the outside hospital because
there was nothing wrong with the appellant and he was scared it was
part of a plan
to escape. The State also handed in an affidavit from
a Correctional Services invesligator in C-max. She confirms that on a
number
of occasions cell phones have been recovered from the
appellant. These cell-phones are smuggled in contrary to the rules
and regulations
of the Correctional Services and the matters against
the appellant are under investigation. This affidavit is to confirm a
Newspaper
report wherein the appellant is mentioned by name in having
smuggled in cell* phones and that by implication these devices lead
to escapes. This also establishes that the accused has no regard for
rules and regulations and he would not adhere to bail conditions.
11.
The Magistrate found that unless new facts are established bail
application upon bail application is an abuse of the process.
He then
addresses the heart condition and the struggling businesses and lack
of finances as the only new facts. He then relies
on, and quotes from
S v van Wyk
2005 (1) SACR 41
(SCA) in which it was found in
circumstances on par with the appellant that: "Hoe dit ook al sy
in sover as wat die appellant
nie behoorlike aandag in bewaring
ontvang nie het hy ander regsmiddels tot sy beskikking en is borg in
die algeimeen nie die rertiedie
vir die vergryping en versuim van die
Gevangenis Owerhede nie.'1 And
"Daar
is min indien enigiets oor van hierdie besigheid wat hy kort voor sy
arrestasie begin het. Sou hy op borgtog vrygelaat
word, betwyfel ek
of hy die besigheid kan bestuur en herbou aangesien die verhoor sy
bywoning vereis."
The
Magistrate found that attending trial on these 24 charges, and
attendance in two other courts would leave him being in the same
position: not much time to attend to his business interests. He
further found that in view of the seriousness of the counts, the
13
finger print experts that had linked him to the counts, the other two
cases in which he is not on bail and the probability of
a very long
jail term if found guilty, he should not be granted bail. This is
amplified by the fact that the appellant might evade
justice.
12.
In terms of s65 (4) I shall not set aside the decision of the
Magistrate unless satisfied that the decision was wrong. The
Magistrate did in fact address the medical condition and the running
of his business as new facts and found them in view of S v
van Wyk
supra not to be exceptional. I can not find that his decision is
wrong There was no corroborating medical evidence before
the court.
Evidence regarding an alleged illness has to be clear and to date
this medical problem has not manifested in that the
cardiologist has
filed a report or recommended that he not be kept in custody for
health reasons. This could have been done as
the appellant
surprisingly failed to enlighten the court that he was taken to the
hospital for the period April 2008 - July 2008.
In the replying
affidavit he takes note of the fact that the investigation officer is
refusing to take him to the hospital after
July, but does not deny
the serious allegations by the investigating officer that he
[appellant] told him that he is not at all
ill, but is only
frustrating the investigation officer. On a preponderance of
probabilities he did not prove his health problems
and in these
circumstances it can not sustain exceptional circumstances.
13.
The appellant's financial bankruptcy rendering him not being able to
pay his legal team fees was also correctly decided as not
being
exceptional He has been in custody since April 2006. No reasons were
forwarded why the businesses are on the verge of bankruptcy.
He has a
wife. 12 employees in the tavern and 6 employees in the taxi
business. Although it is probable that he was in control
of the
businesses, there is no averment that he did the day to day running
of the business. In fact it does not seem to be a new
fact as on p217
of the record Irma Labuschange states, " it should also be
stated that, due to his incarceration, he is not
in any position to
look after his business interests and is, therefore, suffering
serious financial losses. It is now 3 years later
and with him not
there it is possible that the businesses are not run as well with him
in control, but this is not said. It is
just boldly averred that they
are bankrupt. Questions are unanswered, are they stealing from him,
have they closed the businesses,
due to the recession are people
drinking less? The appellant did not prove on a preponderance of
probabilities that his financial
position is exceptional. The
magistrate is also correct that due to the magnitude of the court
proceedings his time to control
the business would be very limited.
In these circumstances this is not an exceptional circumstance. It
was submitted form the Bar
that the appellant is re-iterating his
offer to pay R200 000.00 bail. This is a substantial amount of money
and does not sustain
the alleged bankruptcy. Accordingly there is
money available for his legal team and he has not proven exceptional
circumstances.
14.
Mr Pistorius for the appellant also argued that his mental state was
a new factor to consider. The appellant avers that due
to restricted
visits his communication with his wife and children has broken down.
This and little access to other inmates and
newspapers etc, has
affected his mental state. This is all due to his transfer to C-max
from 22 February 2008, thus after his first
application for bail
based on new facts. The Magistrate addresses this with the following:
"I am giad you have brought the
application to the High Court
about your treatment, your being sent to C-max prison, but it has got
nothing to do with me, I cannot
then on that basis release you on
bail. " [pi 15 of bundle] I have to agree that his transfer to
C-max is not per se a fact
for bail to be granted; this is something
between him and Correctional Services. The appellant however
instructs his attorney to
postpone the urgent application against his
transfer to C-max sine die despite his knowledge that a pending
internal investigation
:l is not expected soon . 11 [pB8 of bundle)
This transfer does however potentially create new facts pertaining to
his mental state.
Once again there are very little facts to
substantiate his mental state as an exceptional circumstance. Being
in solitary confinement
and with restricted access to family and
media would affect his mental state. There are however no facts that
his mental state
is substantial and therefore exceptional. It was
submitted that I must also take cognisance of the facts that he had
previously
tried to commit suicide and according to Irma Labuschange
is depressed. From her report the move to C-max has brought about
very
little new facts:” Since his Iasi bail application, he has
not been allowed any contact visits with his wife or children This
has caused his depression to deepen. He has voiced serious concern
that his situation is causing a serious rift between him and
his wife
as there is no communication allowed l: [p217 of the record.] In
C-max the chances of him being afforded an opportunity
to take his
own life are thankfully less. On the one hand there are very little
new facts and on the other hand they are not exceptional.
15.
It was also argued that the Magistrate should have considered the
fact that according to Correctional Services he is fit for
house-arrest. The Magistrate did not address this as new fact
House-arrest was indeed raised at the first appeal on new facts This
time round however there is a report form Correctional Services
confirming this The information contained in this statement was
obtained from the appellant himself. Contrary to the information
contained therein the appellant had already pleaded, only half
of
what he was charged with was divulged, i.e. escaping and now he has
only three employees working at the tavern. Nothing is divulged
of
the other two cases wherein he is also in custody These
inconsistencies negate the recommendation therein and then in fact
there are no new facts before the court. Even if the statement does
constitute new facts then its recommendation is not to be accepted.
Granted house-arrest can be a factor in determining whether bail
should be granted, but Section 62(f) only comes into play when
a
court has already granted bail and upon application by the
prosecutor. I can accordingly not find that the magistrate : s
decision
is wrong.
16.On
the entire set of facts before me I cannot find that the Magistrate ’
s decision in either not accepting facts as new
facts, or finding
them not to be exceptional was wrong.
17.
The Magistrate did not err in not deciding on the evidence of all
three bail applications in toto. This is only done by the
Court of
Appeal of the bail applications. The Magistrate cannot sit on appeal
on his previous judgment; his only duty is to determine
whether there
are new facts and to compare the applications in this regard.
18.The
Magistrate cannot refuse an accused his right to apply for bail on
new facts. The new fads must however be substantial and
the accused
cannot simply apply for bail afresh every second day - S v Vermaas
1996(1) SACR 528(T) The fact that the Magistrate
warned the accused
not to do so is not irregular. It is debatable whether it is
irregular to require an affidavit before bringing
a bail application.
This does however not render his decision pertaining to the granting
of bail wrong.
19.
On all the facts I cannot find that the Magistrate's decision is
wrong and I accordingly make the following order:
20.
The appeal is refused
S
Potterill
Acting
Judge of the High Court