Brief Summary

Bail — Refusal of bail — Appeal against refusal — Appellants charged with racketeering — Applications for bail dismissed on grounds of potential witness intimidation — Appellants argue no evidence linking them to intimidation — Court must determine if lower court's decision was wrong — Appeal upheld based on lack of evidence of intimidation and interests of justice.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a set of bail appeals brought to the High Court in terms of section 65 of the Criminal Procedure Act 51 of 1977. The proceedings concerned whether three accused persons, whose bail applications had been refused in the regional court, should be released on bail pending trial.

The parties were Mojalefa Theodore Kgaile (first appellant), Emmanuel Fenasse (second appellant), and Maxwell Vumazonke (third appellant) as appellants, and the State as respondent. The appeals were opposed by the State.

The procedural history reflected that each appellant had applied for bail in the regional court and had been refused. The first appellant’s bail application was refused on 13 March 2009, the second appellant’s on 23 September 2009, and the third appellant’s bail applications were refused on 29 July 2009 and again on 11 September 2009 (the second application being premised on alleged new facts). Because the appellants were to be jointly prosecuted in the High Court on racketeering-related charges and their grounds of appeal overlapped, the parties agreed that the appeals be heard together. The first appellant also sought condonation for the late filing of his appeal, which the State did not oppose; the High Court accepted the explanation and entertained the appeal.

The general subject-matter of the dispute was whether continued detention was justified in circumstances where the State alleged, as the principal basis for opposing bail, a likelihood of intimidation or interference with a section 204 witness and her brother, together with concerns (in relation to specific appellants) about flight risk and the commission of further offences.

2. Material Facts

It was common cause that the offences for which the appellants were to be prosecuted fell under Schedule 5 of the Criminal Procedure Act 51 of 1977. The State approached the bail applications on the basis that section 60(11)(b) applied. The record included a written authorisation by the National Director of Public Prosecutions and an indictment indicating that the appellants would be prosecuted for racketeering-related offences in contravention of section 2 of the Prevention of Organised Crime Act 121 of 1998, with an amount involved in excess of R1 000 000.

The appellants each testified in their separate regional court bail proceedings, placing personal circumstances before the court. The first appellant was 25 years old, lived with his mother in Kimberley, had three minor children, had no previous convictions, and indicated an intention to plead not guilty. The second appellant, aged 35, lived in Klerksdorp with his wife (a police inspector), had children and business interests, had two previous convictions (one relating to unlawful possession of uncut diamonds and one to assault), and denied involvement in intimidation or disruption of an identity parade. The third appellant, aged 54, resided in Bloemfontein, was married with school-going children, had multiple previous convictions (including theft and an older rape conviction), had a pending regional court matter in which he had been granted bail, and described serious family hardship during detention.

The State relied materially on the evidence of Captain Fernando Luis, a member of an investigating task team formed to investigate tender fraud. The evidence described a consistent modus operandi: the appellants (posing as Public Works officials) allegedly approached businesspeople, convened meetings at government buildings or hotel boardrooms, elicited information consistent with a tender process, and required cash deposits (in some cases as high as R400 000) and, in some instances, additional “donations”. Captain Luis’s evidence was that the appellants were part of a syndicate, that the offences were committed in furtherance of the aims of that syndicate, and that they were linked to the racketeering crimes by a section 204 witness (identified in the judgment as Miss Deetlefs), who had allegedly been part of the syndicate.

On the intimidation aspect, Captain Luis’s evidence included that the brother of the section 204 witness received anonymous calls enquiring about the witness’s whereabouts, coupled with threats that the witness would be killed. The witness was placed in a witness protection programme as a result, although it was also stated that there were no reports of intimidation after the arrests and she was no longer under protection. The evidence further referenced that Mr Gift Musi, described as the leader of the syndicate, had threatened to kill the section 204 witness.

The evidence also addressed additional risks. Captain Luis expressed concern that the appellants would delay the hearing of the trial and would commit further crimes to finance their defence. In relation to the second appellant, the State raised concerns about his movements and the suggestion that even his wife did not know his whereabouts or contact details when the police were searching for him. In relation to the third appellant, the evidence was that he had committed crimes reflected in counts in the indictment while out on bail in respect of another pending matter, and that his co-accused in that pending matter was Mr Gift Musi.

Certain factual matters were disputed in the sense that the appellants denied knowledge of, or participation in, intimidation of the section 204 witness and her brother, and criticism was advanced that Captain Luis’s evidence did not directly link any appellant to acts of intimidation. However, the court treated the risk of interference and intimidation as materially supported by the State’s evidence when considered against the nature of the alleged syndicate, the witness’s role, and the witness’s familiarity to the appellants.

3. Legal Issues

The central legal questions were whether the regional magistrates’ refusals of bail were wrong within the meaning of section 65(4) of the Criminal Procedure Act 51 of 1977, and whether (given the Schedule 5 categorisation) the appellants had adduced evidence satisfying the court that the interests of justice permitted release as required by section 60(11)(b).

A key issue concerned the application of law to fact: whether the evidentiary material (particularly Captain Luis’s evidence about the syndicate and threats) justified a finding that the matter fell within the statutory factors bearing on bail refusal, especially the ground that there was a likelihood of interference with witnesses (treated by the court as within section 60(4)(c)). Additional application-of-law-to-fact questions arose regarding whether there were factors against the second appellant relating to flight risk, and against the third appellant relating to the commission of further offences while on bail.

The appeal also raised a question of legal characterisation and evaluation: whether the magistrates erred because they did not expressly and categorically classify their findings under each of the factors in section 60(4)(a)–(e), and whether the balancing required by section 60(9) had been appropriately undertaken in weighing personal liberty and prejudice against the interests of justice.

4. Court’s Reasoning

The High Court began by identifying the governing appellate standard under section 65(4): it could not set aside the refusal of bail unless satisfied that the decision of the lower court was wrong, in which event it was required to give the decision that the lower court should have given. The court thus approached the matter on a constrained review basis rather than a free reconsideration.

On the applicable bail regime, the court accepted that the State correctly proceeded under section 60(11)(b) because the charges fell within Schedule 5 and the record (including the indictment and authorisation) reflected prosecution for racketeering under section 2 of the Prevention of Organised Crime Act 121 of 1998, involving amounts exceeding R1 000 000. On this footing, the court treated the appellants as bearing the onus to satisfy the court, through evidence, that the interests of justice permitted their release.

In addressing the appellants’ contention that the magistrates did not find the existence of the statutory factors in section 60(4)(a)–(e), the High Court accepted the State’s submission that a failure to label findings explicitly under each subsection did not mean the magistrates failed to consider those factors. The court agreed that the magistrates’ findings were consistent with the statutory framework, and it accepted reliance on authority emphasising that judicial reasoning is to be evaluated substantively rather than by formalistic categorisation.

A substantial part of the reasoning concerned the meaning of “likelihood” in the bail context. Counsel for the appellants conceded a risk of witness intimidation but resisted equating risk with likelihood. The court rejected that distinction, reasoning that “likelihood” in context carried the sense of probability and that “risk” could capture that concept. In support of this approach, the court referred to authority interpreting “likelihood” in bail-related decision-making as not requiring a successful attempt at interference and as not requiring the State to “run the risk” of harm.

Applying the principles to the facts, the High Court held that the matter fell “fairly and squarely” within section 60(4)(c) (likelihood of interference with witnesses). It reasoned that the section 204 witness was described as having been part of the syndicate and thus known to the appellants, and that she was a main witness who could testify about the syndicate’s activities and link the appellants to the offences. This, in the court’s view, supplied a strong motive to interfere. The court further considered that Mr Gift Musi’s threats and his role as the alleged syndicate leader made it not remotely excludable that influence could be exerted over the witness, including via the appellants. The court also noted evidence that the second appellant had very close ties with the section 204 witness and her family.

The court further recorded that there was cogent evidence (including concessions made by appellants’ counsel) supporting that the second appellant was a flight risk, and that the third appellant committed racketeering-linked crimes while out on bail, which the court treated as engaging additional statutory considerations referenced in the judgment as section 60(4)(a) and section 60(4)(b) against the second and third appellants.

The High Court then turned to the balancing exercise under section 60(9), which requires the court to weigh the bail refusal factors against the accused’s right to personal freedom and the prejudice likely to be suffered through continued detention. The court accepted that the appellants had been in custody for months and that the case was complex and the trial likely protracted. However, it considered that the State had been ready to proceed earlier and that trial dates had shifted due to the unavailability of legal representatives, with new dates arranged for February 2010. The seriousness of the alleged racketeering offences, the amounts involved, and the potential for severe punishment (including the possibility of substantial fines and imprisonment, as stated in the judgment) were treated as materially increasing incentives to interfere with witnesses. The court also considered that bail conditions might not be effective or enforceable given the risks identified.

On the totality of these considerations, the court held that it had not been persuaded that the magistrates were wrong in concluding that the appellants had failed to discharge the onus under section 60(11)(b) to show that release on bail would be in the interests of justice.

5. Outcome and Relief

The High Court dismissed the bail appeals. The practical effect was that each appellant remained in custody pending trial.

Condonation for the late filing of the first appellant’s appeal was granted (or, at minimum, the court accepted the explanation and entertained the appeal), noting that the application was unopposed and that sufficient reasons for delay were provided.

No separate costs order was recorded in the judgment.

Cases Cited

Tshabalala v The State (1998) 3 All SA 411 (C).

R v Dhlumayo and another 1948 (2) SA 677 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, sections 60(4), 60(9), 60(11)(b), 65, and 65(4), and Schedule 5.

Prevention of Organised Crime Act 121 of 1998, section 2.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that, because the appellants were charged with Schedule 5 offences, section 60(11)(b) applied and the appellants bore the onus to adduce evidence showing that the interests of justice permitted their release on bail.

It held further that the magistrates’ decisions were not shown to be wrong as required by section 65(4). On the evidence, and including concessions made on behalf of the appellants, the court was satisfied that there was a likelihood of interference with witnesses as contemplated by section 60(4)(c), together with additional concerns relating to flight risk (second appellant) and the commission of offences while on bail (third appellant), as treated by the court as engaging further statutory factors.

After weighing the risks to the administration of justice against the appellants’ personal circumstances and the prejudice of continued detention in terms of section 60(9), the court held that the appellants had not discharged the statutory onus and that bail was correctly refused. The appeals were accordingly dismissed.

LEGAL PRINCIPLES

The judgment applied the principle that, in a bail appeal under section 65(4) of the Criminal Procedure Act 51 of 1977, the appellate court may not interfere with the lower court’s decision unless satisfied that the decision was wrong, and if so must substitute the decision that ought to have been given.

It applied the Schedule 5 bail regime under section 60(11)(b), namely that an accused charged with a Schedule 5 offence must be detained unless the accused adduces evidence satisfying the court that the interests of justice permit release. The onus in that context rests on the accused.

The court applied the principle that the statutory ground concerning a likelihood of interference with witnesses (treated as falling within section 60(4)(c)) does not require proof that interference will succeed, and that “likelihood” in this context is aligned with probability, which the court accepted could encompass a “risk” of interference as argued about in the case.

The judgment further reflected that a lower court’s bail reasoning is not rendered defective merely because it does not explicitly classify each factual finding under each subsection of section 60(4)(a)–(e), provided the substance of the reasoning aligns with the statutory framework and demonstrates that relevant factors were weighed.

Finally, the judgment applied the balancing requirement in section 60(9), namely that even where statutory risk factors are present, the court must weigh those factors against the accused’s right to liberty and the prejudice of continued detention; however, on the facts of this case, the court held the interests of justice outweighed the appellants’ liberty interests and personal prejudice.

Kgaile and Others v S (CA& R 86/09) [2009] ZANCHC 77 (4 December 2009)