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[2009] ZAGPJHC 122
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Twala and Others v S (A188/2009) [2009] ZAGPJHC 122 (30 April 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. A188/2009
DPP Ref. No. JAP 2009/200
Date:30/04/2009
In the bail appeals of:
VICTOR TSHEPO
TWALA
…...........................................................
First
Appellant
LEBOGANG IGNATIUS
MOTSOANE
.........................................
Second
Appellant
THAPELO CLIFFORD
MOGOSHI
...................................................
Third
Appellant
PATRICK
SITHOLE
…...................................................................
Fourth
Appellant
and
THE STATE
MEYER, J
[1] This is an appeal by the four
appellants against the refusal to grant them bail by the Regional
Court, Protea. Their bail applications
were heard and refused on 25
February 2009.
[2] Mr ES Classen, an attorney from
Attorneys David H Botha, Du Plessis & Kruger Inc who represented
the appellants in this
bail appeal, was unable to shed any light on
the extraordinary delay in the prosecution of this appeal other than
to inform me
that Attorneys David H Botha, Du Plessis & Kruger
Inc. was initially instructed to appear on behalf of the appellants,
but
their mandate was terminated before the hearing of the bail
application on 25 February 2009. The termination of their mandate
appears from a notice dated 22 January 2009. The appointment of
inter alia
Mr
Classen appears from the special powers of attorney signed by each
appellant on 7 April 2009.
[3] The State, represented by Adv
Kampa, conceded that the lower court’s decision to refuse bail
to the second and fourth
appellants was wrong. This concession, in
my view, was correctly made. The only evidence that the State placed
before the court
a quo
in
rebuttal of the second and fourth appellants’ denials in their
affidavits of their involvement in the commission of the
offence
under consideration, was an affidavit made by the investigating
officer in which he stated that accused 1, who is the first
appellant, made a confession, he was charged and he pointed out
accused 2, who is the second appellant, who, in turn, pointed out
accused 3, who is the third appellant, and accused 4, who is the
fourth appellant. The first appellant’s mere alleged pointing
out of the second appellant is vague and meaningless. If it is
accepted that the first appellant’s alleged pointing out
implicated the second appellant, then it is not clear whether such
pointing out formed part of the first appellant’s confession
or
whether it formed part of a separate pointing out made by him. If it
formed part of the confession, then it would be inadmissible
in terms
of s 219 of the Criminal Procedure Act 51 of 1977 (‘the CPA’).
If it formed part of a separate pointing out
implicating the second
appellant, then such pointing out may well amount to an admission by
conduct, which constitutes hearsay
evidence as defined in
s 3
(4) of
the
Law of Evidence Amendment Act 45 of 1988
that may, subject to the
provisions of any other law, not be admitted as evidence against the
second appellant unless the requirements
set out in ss (a), (b), or
(c) of
s 3(1)
of that Act are satisfied. See:
S
v Ndhlovu and Others
2002
(2) SACR 325
(SCA) and
S v
Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC).
[4] At the conclusion of the argument
before this Court yesterday morning, an order was issued for the
release of the second and
fourth appellants on bail of R5 000.00 each
subject to appropriate conditions proposed by the State and the
defence. Judgment
on the bail appeals of the first and second
appellants was reserved until this morning to afford me the
opportunity of considering
counsels’ submissions overnight.
[5] No
viva
voce
evidence was led
either in support of or in opposition to the appellants’ bail
applications. The affidavits made by appellants
were presented and
first read into the record by their legal representatives, whereafter
an affidavit made by the investigating
officer was presented and read
into the record by the prosecutor. The record of the bail
proceedings in the court
quo
shows that, from
beginning to end, the State, the appellants, their legal
representatives, and the learned regional magistrate approached
the
bail applications on the basis that s 60(11)(a) of the CPA applied to
them, because the offence in issue was one referred to
in Schedule 6.
[6] There is, however, no indication
on the record that the appellants had been ‘charged with a
definite, circumscribed and
understandable offence’
[
Prokureur-Generaal,
Vrystaat v Ramokhosi
1997
(1) SASV 127 (OPA), at p 156 c – f and
S
v Kock
2003 (2) SACR 5
(SCA) at p 9 g – h], no written confirmation as envisaged in s
60 (11A) was handed in, and no evidence was led by the State
to first
establish the required jurisdictional fact for the application of s
60(11)(a) [
S v Kock
(
supra)
at p 9 f].
[7] In his affidavit the first
appellant stated that he was being ‘charged with business
robbery’, he denied that he
‘participated in the said
robbery’, he stated that he would disclose the basis of his
defence at the trial, and he
stated that in his opinion there existed
exceptional circumstances since the case against him was weak. The
third appellant stated
that he was charged with ‘[r]obbery
aggravating circumstances’ and he further stated that he ‘did
not commit
any offence’, he was taken by surprise when the
police arrested him, and also that he would disclose the basis of his
defence
at the trial.
[8] The relevant rebutting evidence
appearing from the investigating officer’s affidavit reads:
‘
3.
Victor Twala [the first appellant]
reported that he and the security guard were robbed of about five
television sets. He Victor
Twala later made a confession to a
captain that he initiated the robbery because the owner of the pub or
business does not pay
them, firearm was used and recovered.
4.
Victor Twala was charged and he
pointed out Lebogang Motsoane [the second appellant] and accused no.
2 [the second appellant] pointed
out accused no. 3 [the third
appellant] and 4 [the fourth appellant].
5.
All the television sets were recovered
from a Mr. Nazeer Bhayat who said that accused no. 3 brought them to
him in Lenasia at his
house.’
[9] The allegations implicating the
first and third appellants in the commission of the offence under
consideration are extremely
vague and unspecific. It is not known
whether the
‘confession’
referred to by the investigating officer was indeed one and what
material incriminating the first appellant it contains. It may
not
be a
‘confession’
at all despite its labelling as such by the investigating officer and
his interpretation of its incriminatory content may be unsound.
The
second appellant’s mere alleged pointing out of the third
appellant is vague and meaningless. It does not implicate
the third
appellant in the commission of the Schedule 6 offence under
consideration. If it does, then it may well amount to an
admission
by conduct, which constitutes hearsay evidence as defined in
s 3
(4)
of the
Law of Evidence Amendment Act 45 of 1988
. The allegation that
the third appellant
‘brought’
the television sets in issue to Mr Bhayat at his house in Lenasia
does not, in the absence of more information, inferentially implicate
the third appellant in the commission of any offence, let alone the
commission of the Schedule 6 offence under consideration.
He could
have done so at the request of Mr Bhayat and in ignorance of the
commission of any crime. It should also be mentioned
that the date
or place of the offence under consideration was not disclosed and nor
was the date upon which the third appellant
‘brought’
the television sets to Mr Bhayat at his house.
[10] The record of the bail
proceedings furthermore does not support the learned regional
magistrate’s finding that the appellants
stood ‘before
court charged with robbery with aggravating circumstances, possession
of a firearm and possession of ammunition.
The affidavit evidence of
the investigating officer, in my view, was also insufficient to
establish the required jurisdictional
fact for the application of
s
60(11)(a)
to the bail applications of the first and third appellants.
I nevertheless proceed on the assumption that the totality of
evidence
established the required jurisdictional fact.
[11] The strength of the State’s
case against an applicant for bail is relevant to the existence of
‘exceptional circumstances’
within the context of
s 60
(11)(a). See
S v Botha en
‘n Ander
2002 (1)
SACR 222
(HHA), at p 230 g – i. The learned regional
magistrate appears to have accepted the prosecutor’s
submissions of a
strong State case against the appellants. Such was
not established. On the evidence presented, the learned regional
magistrate
was in no position to even form a
prima
facie
view as to the
strength or weakness of the State case and the appellants should have
received the benefit of the doubt. See
Kock
(supra)
,
at p 11i – 12 b.
[12] The learned regional magistrate
further appears to have accepted the prosecutor’s submissions
of the likelihood that
the appellants might interfere with State
witnesses. The State witnesses referred to are Mr Pillay and Mr
Bhayat. Such a likelihood
was simply not established. Both
appellants undertook not to interfere with State witnesses. The
imposition of a suitable bail
condition prohibiting the appellants
from having any direct or indirect contact with the said State
witnesses would have protected
the witnesses adequately.
[13] Adv Kampa submitted that the
proper course would be to remit the bail applications of the first
and the third appellants to
the regional court for the learned
regional court magistrate to act in accordance with the provisions of
s 60(3)
of the CPA. I disagree. The required jurisdictional fact
for the application of
s 60(11)(a)
should have been established by
the State and the prosecutor was at liberty to lead any evidence she
considered appropriate on
the merits. The appellants should have
received the benefit of the doubt and to remit the matter in the
circumstances of this
case will merely afford the State a second bite
at the cherry.
[14] The appellants have, in my
judgment, established the requisite circumstances that permit their
release in the interests of
justice.
[15] In the result the following order
is made:
A. The bail appeals of the first and
third appellants succeed.
B. The order of the learned regional
magistrate, Mr Mahungu, made on 25 February 2009 in terms whereof the
first and the third appellants’
bail applications were refused,
is set aside and replaced by the following order:
1. Accused 1 and the accused 3 are
released on bail subject to the conditions that each accused:
1.1 is to be released from custody
upon payment of the sum of R5 000.00;
1.2 must report to the SAPS, Kliptown
once a week on a Monday between the hours of 08h00 and 20h00; and
1.3 is prohibited from having any
direct or indirect contact with the State witnesses Mr Pillay and Mr
Bhayat;
1.4 must appear before court on the
date and the place and the time determined for his trial.
P.A. MEYER
JUDGE OF THE HIGH COURT
30 April 2009