Wessels v S (CA&R 32/09) [2009] ZANCHC 59 (10 June 2009)

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[2009] ZANCHC 59
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Wessels v S (CA&R 32/09) [2009] ZANCHC 59 (10 June 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
[
Northern
Cape High Court, Kimberley]
Case
no: CA&R 32/09
Date
heard:
2009-06-05
Date
delivered:
2009-06-10
In
the
bail
appeal of
:
JOHANNES
COENRAAD WESSELS
APPELLANT
versus
THE
STATE
RESPONDENT
Coram:
MAJIEDT
J
REASONS
FOR ORDER
MAJIEDT J:
The Appellant appealed
against the refusal of bail by the Magistrate of Kathu. On 5 June
2009 I had issued an order granting
bail in the amount of R5000.00
to the Appellant, subject to certain conditions. These are the
reasons for that order.
The
Appellant is to face a charge of rape, it being alleged that he had
engaged in unlawful sexual inter
course
without the consent of the complainant, a young woman. Bail was
refused by the presiding magistrate primarily on the basis
that
there was a likelihood that the Appellant would interfere, either
directly or indirectly, with the State witnesses and the
complainant
should he be released on bail.
On
behalf of the State, the investigating officer, inspector Mogosi
testified, while the Appellant’s attorney handed in an affidavit

as his testimony. The magistrate in addition called a further
witness, the head of the detective unit at
Kathu
SAPS, captain Smith. The facts which were germane to the bail
application and to this appeal can be succinctly stated as
follows:
3.1 The
complainant was allegedly raped by the Appellant after the latter had
given her a lift to her house. He took a detour with
her and
allegedly raped her in the veld. Subsequently, while the complainant
was seeking assistance, she was raped again by two
other men.
Thereafter she was taken to the hospital and medically examined.
3.2 Inspector
Mogosi testified about certain attempts by one Becay to influence the
complainant to withdraw the rape charge against
the Appellant.
Inspector
Mogosi alleged on a hearsay basis that Becay was employed at a tavern
belonging to the Appellant, who is a businessman
at Kathu. It was
alleged that Becay had in fact accompanied the complainant to the
police station in order for the latter to make
a withdrawal
statement, i.e. so as to have the rape charge withdrawn against the
Appellant. It was also alleged that the complainant
was offered
R40 000,00 in cash if she would acquiesce to a withdrawal of the
charge.
3.3
The
Appellant denied any attempts to influence the complainant or any
other witnesses and undertook to stand his trial should he
be
released on bail.
3.4
Captain
Smith testified about perceived interference in the case by the
members of the detective unit in Kathu, which had resulted
in the
case being transferred to the Mothibistad SAPS detective unit where
inspector Mogosi was stationed.
It
was common cause at the bail hearing and also at the appeal before
me that the only issue with regard to the bail application
was the
question whether the Appellant would
interfere
with the state witnesses, in particular the complainant, by
attempting to influence them. The Magistrate, correctly
in my view,
accepted that there was no likelihood of the Appellant fleeing and
that he would not interfere with the investigation
which had almost
been completed at that stage.
The
matter was correctly decided
a
quo
on
the basis that the Appellant was facing a schedule 5 offence,
namely rape. The provisions of sec 60(11)(b) of the
Criminal
Procedure Act, 51 of 1977 (“
the
Act”
)
are therefore applicable. That subsection reads as follows:
“
(11) Notwithstanding
any provision 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.”
It was
therefore required of the Appellant to prove on a balance of
probabilities that
the
interests of justice permit his release.
See in
this regard:
S
v Yanta
2000(1)
SACR 237 (TK) at 241 b.
One
of the factors which requires consideration and which
plays
an important role in a matter of this nature is the strength (or
weakness) of the State’s case.
See in
this regard:
S
v Kock
2003(2) SACR 5 (SCA) where Heher AJA (as he then was) observed
as follows at 11 i to 12 a:
[15]
In
the context of s 60(11)(a) of the Act the strength of the State case
has been held to be relevant to the existence of 'exceptional

circumstances': …... There is no doubt that that strength (or
weakness) must be given similar consideration in determining where

the interests of justice lie for the purpose of s 60(11)(b). When the
State has either failed to make a case or has relied on one
which is
so lacking in detail or persuasion that a court hearing a bail
application cannot express even a prima facie view as
to its strength
or weakness the accused must receive the benefit of the doubt. The
case presented to the court of first instance
fell into the second
category. That should have been an important factor in the
magistrate's evaluation of the application. Because
of her
misdirection no proper attention was paid to it.”
It
must also be remembered at all times that the presumption of
innocence in our law operates in favour of an accused person until

guilt has been established on the requisite onus of proof in court.
This is so even where there is a strong
prima
facie
case
against an accused.
See in this regard:
S v
Crossberg
[2007] SCA 1993 (RSA) at par [13] note 1;
S v
Kyri
acou
2000(2)
SACR 704 (O) at 712 e-f.
In
the present matter, apart from the identification
of
Appellant and allegations of rape levelled against him by the
complainant, there seems to be no other evidence on record linking

the Appellant to the commission of the offence in question. The
only evidence produced by the investigating officer is that
used
condoms were found on the scene and in the Appellant’s motor
vehicle. There is no indication if the Appellant is linked
by
forensic evidence to the alleged rape of the complainant through,
for example, DNA evidence. Consequently it cannot be said
that the
State has a strong case against the Appellant at this stage. At
best for the State it can be said that there is some
evidence
linking him to the commission of the offence. Such evidence must of
course still be tested in a court through cross
examination of the
complainant.
Quite
apart from the fact that the State does not appear to have a strong
case
against the Appellant, there is in my view another compelling reason
why the Magistrate erred in dismissing the Appellant’s
bail
application. Mr. Hollander, who appeared for the State, was driven
to concede during argument that there was no evidence
whatsoever
linking the Appellant with the alleged attempted influencing or
intimidation of the complainant, save for the hearsay
evidence of
the investigating officer, inspector Mogosi. The evidence of Mr.
Mogosi is unimpressive, because he made no serious
attempts to
follow up whether this person, Becay, in fact exists. During
cross-examination on behalf of the Appellant it was
vigorously
denied that he knew such a person or that such a person worked for
him at his tavern or at any other of his businesses.
What
must be borne in mind
(and
this was very readily conceded by Mr. Hollander when I put it to him
during his argument) is that not only the Appellant, but
also the
other two alleged rapists (and who had since been arrested by the
police) had a motive to attempt to influence the complainant
not to
testify. Consequently, at best for the State it can only be said
that the complainant is but one of three persons with
a possible
motive to influence the complainant to withdraw the charge.
It is
clear from the aforegoing that the Magistrate had misdirected
himself in finding that the Appellant ought not to be released
on
bail. His motivation is quite unpersuasive as it appears in his
judgment. After having given a detailed exposition of the
law and
the facts before him, the Magistrate
abruptly concludes as follows:
“
My finding would
be that because of the evidence that there has been interference with
the complainant, directly or indirectly,
promises made to give her a
substantial amount of money to withdraw the case, of particular
concern is the involvement, directly
or indirectly, of the Police or
at least their suspected involvement in this case, which believes
(
sic
)
me to say that if the Accused is released on bail today, people will
not have confidence in the legal system. For those reasons
the bail
application is refused.”
The
Magistrate quite clearly misconceived his function. Having
examined
the facts, and with proper application of the relevant legal
principles, he should have been driven to the conclusion
that the
Appellant has made out a case for bail. Nothing in the passage from
the judgment which I have quoted above, suggests
any link between
the Appellant and the alleged influencing or intimidation of the
complainant. No such evidence was adduced,
as I have stated earlier.
To refuse bail on the basis of speculation or suspicion is wrong in
law.
Consequently
in the premises I
held
the view that the Magistrate’s decision was wrong and that his
decision should be set aside and the Appellant be granted
bail as is
envisaged in sec 65(4) of the Act. I had consequently issued the
order granting bail subject to the conditions as
contained in the
order.
___________
________
SA MAJIEDT
JUDGE
FOR THE
APPELLANT :
ADV
GW GALLOWAY
INSTRUCTED
BY :
HUGO
MATTHEWSON & OOSTHUIZEN
FOR THE
RESPONDENT :
ADV
Q HOLLANDER
INSTRUCTED BY
: DPP