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[2008] ZAWCHC 11
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Petersen v S (A717/07) [2008] ZAWCHC 11; [2008] 3 All SA 301 (C) ; 2008 (2) SACR 355 (C) (27 February 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No: A717/07
In the matter between:
NAJWA PETERSEN
Appellant
and
THE STATE
Respondent
JUDGMENT:
27 FEBRUARY 2008
VAN ZYL J:
INTRODUCTION
[1] This is an appeal
against the refusal of the Wynberg Regional Court, to grant the
appellant’s second application for bail pending
the finalisation of
her trial. She and three other accused, namely Abdoer Raasiet Emjedi,
Waahied Hassen and Jefferson Tion Snyders,
are charged with the
murder of the appellant’s husband, one Abdul Mutaliep (“Taliep”)
Petersen, at his home on 16 December
2006. I shall refer to him as
“the deceased”. They are also charged on two counts of robbery,
at the same time and place, of
certain cell phones, watches and cash.
These are offences referred to in schedule 6 of the
Criminal
Procedure Act
51 of 1977
.
[2] The appellant was
arrested on 18 June 2007 and brought an application for bail on 26
June 2007. The application was refused on
12 July 2007. An appeal
against this decision was heard on 31 August 2007 and dismissed on 5
September 2007 by Whitehead AJ. On 11
October 2007 a second bail
application was brought on the basis of new facts. On 10 December
2007 it was likewise refused.
[3] In the first
application and appeal the appellant was represented by Mr C Webster.
In the second application and the present appeal
Mr H M Raubenheimer
SC appeared for the appellant. Ms S Riley appeared for the respondent
in both applications and appeals. The court
expresses its
appreciation to them for their able assistance in this matter.
THE STATE CASE
[4] The facts giving rise to the present proceedings have been fully
dealt with in the various judgments aforesaid and I do not propose
to
repeat them in any detail. The gist of the State case, as it appears
from the evidence of Captain J Dryden, the investigating
officer, is
that the appellant hired one Faheem Hendricks for an amount of R100
000,00 to arrange for the murder of the deceased.
Hendricks, who has
since turned State witness and is presently under witness protection,
approached the second accused to acquire
the services of two
so-called “hitmen”, namely the third and fourth accused, to carry
out the murder. It was initially intended
that the murder would take
place as a hijacking on 14 December 2006, when the deceased and the
appellant were returning home from
the airport after a visit to
London. This could not be done because of the unavailability of the
third and fourth accused. They were
likewise not available the next
day, 15 December 2006, when the deceased returned home from a
performance at a theatre in Wynberg.
The murder was finally scheduled
for the night of 16 December 2006, when the deceased, the appellant
and their young daughter, Zaynab,
were at home.
[5] The State’s case
is further that the appellant gave the third and fourth accused
access to the house by leaving the entrance
gate and door open. They
came upon the deceased in the television room. After beating and
gagging him, they tied him up, apparently
with the assistance of the
appellant, who had joined them at that stage. With a view to creating
the impression that the motive for
the break-in was robbery, the
third accused, who was armed with a firearm, asked the appellant
where the safe was. She took him to
the safe and handed him a bag of
money and her watch. She then went with him to a bedroom where her
son and daughter-in-law and their
baby were sleeping. After
indicating that they should not panic, the appellant apparently stood
by while the third accused relieved
them of cell phones, watches, a
digital camera and cash before returning to where the deceased and
the fourth accused were.
[6] It was alleged that
the appellant then took the firearm of the third accused, covered it
with a cushion and shot the deceased.
During argument before us Ms
Riley, as I understood her, indicated that the State would not, in
the trial of the matter, rely on
the allegation that the appellant
had herself fired the fatal shot. Evidence would, however, be
tendered that she had been actively
involved in planning the murder.
In this regard the State relied on confessions made by the third and
fourth accused and on corroborative
affidavits deposed to by the
appellant’s son and daughter-in-law. Further corroboration appears
from the fact that, on 19 December
2006, the appellant wrote out a
cash cheque for R100 000,00, being the amount she had allegedly
undertaken to pay Hendricks to arrange
the murder of the deceased.
THE FIRST APPLICATION
[7] The appellant’s first application for bail was brought in terms
of section 60(11)(a) of the
Criminal Procedure Act
51 of 1977
(“the Act”). This provides, in essence, that an accused charged
with a schedule 6 offence must be detained in custody
pending his or
her trial, unless he or she “adduces evidence which satisfies the
court that exceptional circumstances exist which
in the interests of
justice permit his or her release.”
[8] The exceptional
circumstances relied on by the appellant in terms of this section
were fourfold: firstly her history of severe
psychiatric problems;
secondly her “precarious mental state” which required on-going
psychiatric care, medication and support;
thirdly the inability of
the prison services to provide such care; and, fourthly, the needs of
her eight-year old daughter Zaynab.
The State opposed her application
on the grounds set forth in section 60(4)(a), (b), (c) and (e) of the
Act, namely that there was
a likelihood that she, on being released
on bail, would endanger the safety of the public, attempt to evade
her trial, attempt to
influence or intimidate witnesses and disturb
the public order or undermine the public peace and security.
[9] The appellant
relied on the evidence of two psychiatrists, Dr B J Fortuin and Dr J
C W George, to place exceptional circumstances
relating to her
precarious state of health before the court. It appears that she had
been receiving psychiatric treatment from 16
March 2003 to 23 May
2006 and had been diagnosed by Dr Fortuin, in his report dated 25
June 2007, as suffering from a number of chronic
mental disorders
with psychotic features and recurrent relapses. Her normal
occupational, personal, family and social functioning
had
deteriorated from 60% to 20%. She was admitted to various psychiatric
wards between 21 February 2004 and 19 November 2006 and
was treated
with numerous forms of psychotropic medication while receiving
regular psychotherapy. Despite this, Dr Fortuin was of
the view that
her condition had gradually deteriorated.
[10] In this regard Dr
George, who has been treating her as from September 2006 up to the
present time, stated in his report dated
20 June 2007 that she had
been diagnosed as suffering from bipolar mood disorder. During August
2006, at the instance of Dr S Chetty,
another psychiatrist, she was
subjected to electro-convulsive treatment because she had not
responded adequately to appropriate doses
of medication. Dr George
expressed the view, during the course of his evidence, that the
stress induced by incarceration might negatively
impact upon the
appellant and even induce her to become suicidal. He did find it
strange, however, that, as from his last telephonic
consultation with
her on 30 November 2006 up to the time of her arrest on 18 June 2007,
she had not seen a psychiatrist or experienced
a relapse, despite the
murder of her husband, the deceased, on 16 December 2006. Dr George
saw her on four occasions between 20 and
30 June 2007 when she was
being held in the Bellville South police cells. Although she was
upset, tearful and agitated, there were
no indications of any
relapse. She complained of insomnia and he adjusted her medication,
with fluctuating results.
[11] In her affidavit
supporting the application, the appellant, who was in custody in the
Breede River Correctional Facility in Worcester,
emphasised her
precarious state of health. Since her arrest she had, as she put it,
been experiencing “severe psychological difficulty”.
She found
incarceration unbearable. It had, she explained, had a “significantly
negative impact” on her state of mind. Inasmuch
as the correctional
facility could not cope with patients suffering from mental problems,
she urgently required the support and care
which she would receive at
home, together with the ongoing services of her psychiatrist. Her
daughter, Zaynab, who had been severely
traumatised by the death of
her father, likewise needed her parental care. These factors, she
submitted, constituted exceptional
circumstances which, in the
interests of justice, required her release on bail.
[12] The State
countered the psychiatric evidence adduced by the appellant by
submitting a report and evidence of Dr L A Panieri-Peter,
a
psychiatrist in the employ of the Western Cape Provincial
Administration and attached to the Forensic Psychiatry Unit at the
Valkenberg
Hospital. The appellant had been referred to the hospital
for observation in terms of section 79 of the Act. According to the
report
it was unlikely that the appellant suffered from bipolar mood
disorder, as suggested by Dr George, and she was assessed as fit to
stand trial. Her mental state was described thus:
Mrs
Petersen impressed as an engaging and co-operative middle aged woman.
She was able to give a good account of herself at all times.
Her
thoughts were clear, rational and logical. There was no evidence of
mania, depression, suicidality or post-traumatic stress disorder
during her admission.
[13] Dr Panieri-Peter testified in this regard that it was odd that
the appellant had not required therapy during the period 30 November
2006 to 18 June 2007 and had in fact, on 6 February 2007 consulted a
medical specialist in regard to cosmetic surgery which she wished
to
have performed on her. This justified the inference that her mental
illness at the time could not have been too serious.
[14] Whether or not
prison services could provide the medical and psychiatric care
required by the appellant, was addressed by Dr
Panieri-Peter and Mr A
Joseph, the Regional Coordinator, Health Care, of the Western Cape
Regional Department of Correctional Services,
who is also a trained
nurse. From their evidence it would appear that there was no reason
why the appellant could not, while in custody,
have regular access to
her own psychiatrist and why the correctional authorities could not,
on a controlled and monitored daily basis,
ensure that she receive
her prescribed medication regularly. As for the suggestion that she
might commit suicide, she would be safer
in a correctional facility
than at home, where she had already made several suicide attempts.
[15] In dealing with
the allegations relating to the appellant’s state of health and her
need for medication and psychiatric treatment
under acceptable
circumstances, the regional court pointed out that there was no
evidence of who would take responsibility for the
care of the
appellant should she be released on bail. Any such caregiver would
have to be adequately trained and experienced in order
to provide
care similar to or comparable with that provided in a correctional
facility. The court accepted that the treatment of
mentally ill
patients in a correctional facility would not be on the same level as
in any recognised mental institution. Such patients
could, however,
always rely on their right to adequate medical care and access to a
chosen medical practitioner in terms of section
35(2)(e) and (f) of
the
Constitution
(Act 108 of 1996). As for the possibility of
suicide, the court aligned itself with Dr Panieri-Peter’s opinion
that, if the appellant
were indeed suicidal, sending her home would
be a “high-risk” thing to do, particularly in view of her history
of attempted suicide.
[16] On the issue of
the parental care required by her daughter, Zaynab, the appellant
pointed out in her affidavit that she was in
the care of her sister,
Mrs Fayruz Arendse, but was having great difficulty coping with the
appellant’s absence. On the occasions
she had visited the
appellant, she had been extremely emotional and had to be virtually
physically removed at the end of the visit.
Mrs Arendse had informed
her that her sleep was disturbed and that she was emotional much of
the time. She clearly needed her mother
and it was in her best
interests that the appellant should be released on bail.
[17] The regional court
accepted that the incarceration of the appellant would deprive Zaynab
of the parental care of a primary caregiver.
Because of her mental
condition, however, the appellant was barely able to look after
herself, particularly if Dr Fortuin’s assessment
that her normal
functioning had decreased from 60% to 20%, was correct. If she
herself needed specialist care, how could she be expected
to give
normal parental care to her daughter? Even more disturbing was the
possibility that she was suicidal, in which event her
child would of
necessity be at risk. In this regard the court was of the view that,
because she had not sought assistance for Zaynab
after the death of
her father, she had been negligent in caring for her child’s mental
well-being. This behaviour was not consistent
with what one would
expect of a parent who genuinely had the interests of her child at
heart.
[18] In considering the
application the court made it clear that it was not its duty to
debate the merits or demerits of the case
against the appellant. It
was, however, satisfied that the evidence of Hendricks would require
“a lot of explaining” from the
appellant. For the rest, her
strong family ties with Namibia and the fact that she had a bank
account there into which she had attempted
to have the proceeds (some
R5.3 million) of a life policy on the life of the deceased deposited,
raised the question whether she
intended to remain in South Africa
permanently. The court was of the view that there was “a real
likelihood” that she would attempt
to evade her trial. The court
likewise opined that it was likely that she would interfere with or
influence witnesses, and that her
release on bail would definitely
undermine and jeopardise public confidence in the justice system. For
these reasons the application
for bail was refused.
[19] In his judgment on
appeal against the court’s refusal to grant bail, Whitehead AJ
dealt fully with the court’s reasons for
such refusal, with
specific reference to the various grounds raised by the appellant as
exceptional circumstances in terms of section
60(11)(a) of the Act.
He was in agreement with the court
a quo
that the appellant
had failed to establish that her history of severe psychiatric
problems or her precarious state of health at the
time constituted
exceptional circumstances as required by the said section. The same
applied to her need for ongoing psychiatric
care and the alleged
inability of the prison services to provide appropriate care for her
psychiatric problems. As for the parental
needs of her daughter it
appeared from the evidence of Mrs Arendse that the deceased had in
fact played a pivotal role in raising
the child and attending to her
needs. The appellant had been unable to do so because of her ongoing
ill-health. She had, for the
most part, relied on two domestic
assistants to act as primary caregivers, namely “Nanny”, the
housekeeper and
au pair
, and, to a lesser extent, one Koekie
van Wyk. In addition the appellant’s extended family, which was
financially well-off and at
that stage included her parents and two
sisters, were close to the child and able to look after her.
[20] Not only was the
appellant limited in her ability to give the child parental care, but
there was also the question whether unlimited
access to the appellant
might prove stressful to the child. Dr Panieri-Peter observed in this
regard that it was “exceptionally
distressing for young children to
see their parents psychotic or mentally unwell”. A factor which
could not be lost from sight
in this regard was the so-called
“stabbing incident” on 13 April 2006, when the appellant stabbed
the deceased in the neck. With
reference to this incident Dr Fortuin
was unable to exclude a repetition of such conduct in the future. For
these reasons Whitehead
AJ concluded that the appellant had similarly
failed to establish that her need to give parental care to her
daughter constituted
an exceptional circumstance in terms of section
60(11)(a) of the Act.
[21] After dealing with
the evidence that the State proposed to place before the trial court,
Whitehead AJ expressed the view that
the State had presented “a
reasonably strong
prima facie
case” against the appellant
and that the appellant would have “a lot of explaining” to do.
This would, of necessity, constitute
a “weighty factor” in
assessing the merits of her bail application.
[22] In regard to the
regional court’s finding that it was likely that the appellant
would abscond in an attempt to evade going
on trial, Whitehead AJ
pointed out that the appellant had offered no satisfactory
explanation as to why she had sought to arrange
for payment of the
proceeds of the life insurance policy on the life of the deceased
into her Namibian account. The attempt by Mr
Webster (the appellant’s
previous counsel) to suggest, during argument, that it was an interim
measure directed at creating a trust
fund for her daughter was, in
Whitehead AJ’s view, unconvincing, particularly if she planned to
remain with her daughter in Cape
Town.
[23] As for the other
grounds of opposition upheld by the regional court, Whitehead AJ
indicated that he might hold a different view
on such grounds. He had
not been persuaded, however, that the court had wrongly exercised its
discretion in respect thereof. In the
event he was not satisfied, as
required by section 65(4) of the Act, that the decision of the
regional court was wrong. The appeal
was accordingly dismissed.
THE SECOND APPLICATION
[24] The second bail
application, which was brought before the same regional magistrate as
had heard the first application, was somewhat
more substantial than
the first. It was based on what were described as “various new
factors and exceptional circumstances” requiring
the court’s
consideration. In this regard the appellant adduced the evidence of a
number of new witnesses and recalled Dr George
to supplement his
earlier evidence. She also relied on a number of affidavits and
documents in support of what her counsel described
as at least fifty
aspects constituting totally new matter and exceptional circumstances
as referred to in section 60(11)(a) of the
Act. The State countered
this by calling a number of new witnesses and recalling Captain
Dryden.
[25] At the outset Mr
Raubenheimer pointed out that the trial of the appellant and her
co-accused has been set down for the period
25 February to 20 March
2008. This did not, he argued, take account of the fact that there
were four accused and that the State proposed
to call a large number
of witnesses, while the defence would also probably call several
witnesses. The allotted time was hence clearly
inadequate for the
matter to be finalised. With reference to other high-profile criminal
matters recently heard by this court, the
appellant suggested that
the present matter might not be finalised before the end of 2008. If
bail should not be granted, it would
mean that she would remain
incarcerated for some eighteen months before the trial was completed.
It would also make it very difficult
for her to consult with her
lawyers and prepare for trial.
[26] Another aspect
raised by the appellant as a new fact was that, since the previous
application, she had been placed in possession
of copies of the
content of the police docket. This had raised a number of questions
regarding the merits of the case against her
and had apparently
prompted her to reveal more of her defence. In this regard she set
great store by the diary of the deceased from
which important new
facts appeared. In addition the various new affidavits deposed to by
potential witnesses of the appellant disclosed
“new and exceptional
facts” which created a new perspective deserving of consideration.
[27] An example of such
facts was the purported existence of certain cassette tapes, on one
of which the appellant’s voice could
be heard. In support of this
proposition Mr G Van Zyl testified as to what he observed after being
appointed as supervisory attorney
in execution of an Anton Piller
procedure ordered by this court against one Mr Radyn. He had
apparently sold the tapes to Mr W Ajouhaar,
a friend of the
appellant’s family, who testified that he had recognised the
“unusual” voice of the appellant on one of the
tapes. This was in
essence confirmed by Mr Radyn. In this regard it was suggested that
Captain Dryden was involved in the transaction
and that the evidence
against the appellant was fabricated.
[28] Another new fact
presented by the appellant was that Mr Ajouhaar and his spouse had
undertaken to move into the home of the appellant
with a view to
assisting with Zaynab and ensuring that the appellant receive the
necessary care. Nursing services would be available
to her
twenty-four hours daily and her psychiatrist and general practitioner
would provide regular professional inputs. In this regard
Dr George
retracted his opinion relating to his diagnosis of bipolar mood
disorder and was no longer of the view that she was a suicide
risk,
or a threat to Zaynab, unless she had a relapse. Dr Fortuin’s
evidence, in the first bail application, that her mental function
was
at a level of 20%, was withdrawn on the basis that it was incorrect.
[29] Great emphasis was
placed on the fact that the appellant had, on one occasion,
apparently lost consciousness at the correctional
facility in
Worcester, thereby indicating that she would be better off at home.
In this regard the deceased had meticulously recorded
her state of
health in his aforesaid diary. From this, it was suggested, it could
be inferred that the deceased had had a good relationship
with her
and that her attempted suicide and the said stabbing incident should
be viewed in a different perspective.
[30] It also meant that
the appellant would be able to give Zaynab the parental care she
required, particularly after the death, since
the first bail
application, of her maternal grandfather and one Mr Eksteen, a very
close friend of the family, in a motor accident.
In this regard the
appellant relied strongly on the reports of Mr Rafiq Lockhat and Dr
Rosa Bredekamp, who emphasised that Zaynab
was in dire need of the
appellant’s presence at home for purposes of giving her parental
care and carrying out her functions as
her primary caregiver.
[31] On the issue of
whether or not the appellant might attempt to evade her trial should
she be granted bail, it was submitted that
her family had given the
assurance that they would not allow her to move to Namibia, where her
family had extensive commercial interests.
In this regard her
brother, Mr Moegamat Yusuf Dirk, deposed to an affidavit confirming
that the Dirk family would not allow her to
become a fugitive from
justice. In any event there were extradition arrangements between
South Africa and Namibia which would prevent
this. Mr Riley, the
appellant’s attorney, confirmed the existence of such arrangements.
[32] Ms Elizabeth
Hacking, an attorney whom the appellant had consulted regarding the
administration of the deceased’s estate, and
Mr Rafiq Saville, the
financial advisor of the deceased, testified as to the good faith of
the appellant relating to her proposed
use of a Namibian account for
purposes of depositing the proceeds of the life insurance policy on
the life of the deceased. Her intention
was primarily to benefit
Zaynab by the creation of an
inter vivos
trust and to keep the
money emanating from the policy separate from her money. In addition
she wished to act in the interests of the
deceased’s children from
his previous marriage. This, it was argued, placed the new
application in a totally different perspective.
[33] The State called
the investigating officer, Captain Dryden, on various aspects
relating to the merits of the case against the
appellant. Ms R H
Neethling, the acting head of the Worcester correctional facility for
women, was also called to testify as to the
conditions in such
facility. According to her there was appropriate medical care
available to the appellant while she remained there.
Sister Horne was
a primary care practitioner and Sister August a psychiatric nurse who
was also trained in psychology. In addition
a psychologist and a
psychiatrist in private practice made regular visits to the facility,
in the sense that one would come the one
week and the other the next.
On one occasion the appellant had seen Dr George, her personal
psychiatrist. He had prescribed medication
for her, including tablets
for insomnia. The nursing staff ensured that she take it at the
prescribed times. When Dr George was unable
to see her, she was quite
happy to see Dr Skinner, the psychiatrist who visited the facility
fortnightly. Ms Neethling was on duty
the evening when the appellant
apparently fainted and lost consciousness while she was praying. She
recovered within a short while,
but complained of a severe headache
and muscular pain. The next day she was taken to a local hospital
because she still suffered
from a headache. She was given medication
for migraine and returned to the facility. There was no recurrence of
the fainting spell.
[34] As for visitation
rights, Ms Neethling arranged that Zaynab visit the appellant on
Saturdays in order to prevent interference
with her schooling.
Although Zaynab would speak to her mother through a window, Ms
Neethling allowed her to give her a hug at the
end of her visits. For
the rest there were appropriate consultation facilities and the legal
team of the appellant was allowed to
consult with her at all
reasonable times, including on Sundays. She was also allowed to make
photocopies provided she made payment
for the copies. At no stage did
she complain about the treatment she was receiving.
[35] Two sisters of the
deceased, Mrs Matoema Groenmeyer and Ms Tagmieda Johnson, as well as
his daughter, Ms Jowaya Petersen, also
testified on behalf of the
State. The gist of Mrs Groenmeyer’s evidence was that she had
always been very close to Zaynab, who
had spent a number of weekends
with her after the death of the deceased, but apparently ceased doing
so when Mrs Groenmeyer had been
accused by certain family members of
turning against the appellant. Mrs Groenmeyer confirmed that the
housekeeper of the appellant
and deceased, known to them as “Nanny”,
had been Zaynab’s primary caregiver, while the deceased had given
her the parental
care which the appellant had been unable to give
because of her illness. Mrs Groenmeyer stressed that there was a
strong bond between
Zaynab and the appellant, but gave the assurance
that, in the absence of the appellant, she would be cared for by her
extended family
on both the paternal and maternal side.
[36] Ms Johnson
testified that she had been very close to the deceased who, though a
private person, had always shared his problems
with her. He had been
a loving and caring person who did his best for Zaynab and his
children from a previous marriage. After the
stabbing incident his
relationship with the appellant broke down and they no longer prayed
or slept together. At that stage the deceased
was contemplating a
divorce from the appellant. Ms Johnson was of the view that the
appellant’s illness was not always genuine
and that she was
frequently acting or dramatising. After the death of the deceased,
however, her health took a dramatic turn for
the better.
[37] Ms Petersen, the
second eldest daughter of the deceased from his previous marriage,
testified that she had lived with the deceased
and the appellant, but
had left their home after the stabbing incident because she feared
for her life. She confirmed Ms Johnson’s
evidence that, after this
incident, the appellant and deceased slept in separate rooms and that
Zaynab slept with the deceased. He
took her to school and fetched her
again, after which he would help her with her homework. Ms Petersen,
who was twenty-one years
old and on the point of graduating in
psychology, gave the assurance that she would be happy to care for
Zaynab, whom she regarded
as her baby sister.
[38] In his argument
before the court
a quo
Mr Raubenheimer stressed the good faith
and correctness of the appellant’s version relating to her medical
condition, but questioned
the strength of the State case,
inter
alia
regarding the allegation that the appellant had given the
so-called “hitmen” access to the house by leaving the security
gate
and front door open for them. In this regard Mr Raubenheimer
suggested that Koekie van Wyk, who had since left their employ, had
also been in a position to facilitate access by intruders.
Furthermore the appellant’s version, namely that she had been
locked
up in her bedroom at the time the fatal shot was fired, was
supported by Zaynab and other witnesses. These were new factors, Mr
Raubenheimer
submitted, as was the fact that the appellant’s
brother in Namibia had been granted bail in the amount of R100
000,00. Mr Raubenheimer
rejected as unacceptable the reliance by the
State on the video’s purportedly made at the scene of the crime on
the night of the
murder and, by the same token, the so-called
confessions by the third and fourth accused.
[39] Mr Raubenheimer
was particularly critical of the evidence of Captain Dryden on the
basis that, in the second bail application,
he testified on matters
which he had failed to disclose in the first application. This
related, more specifically, to the allegation
that the aforesaid
confessions supported the appellant’s alleged role in tying the
feet of the deceased. It related also to the
representation that the
appellant had made several enquiries as to the progress of her
insurance claim arising from the death of
the deceased. Similarly
Captain Dryden’s suggestion that the appellant had been “play
acting” could not be reconciled with
the incidents when she
suffered from loss of consciousness, or had spells of dizziness and
fell down steps with resultant injuries.
A further point of criticism
was Captain Dryden’s failure to mention the possibility that Koekie
van Wyk could have given the intruders
access to the house or that
the access entrances had been open. He had likewise failed to bring
the notes in the diary relating to
diamond deals and foreign exchange
transactions to the fore, despite their relevance to the merits of
the case against the appellant.
The fact that the diary was brought
to the attention of the defence as recently as 23 October 2007 was,
Mr Raubenheimer submitted,
inexplicable.
[40] Among the further
aspects raised by Mr Raubenheimer was the fact that several witnesses
described the appellant and deceased
as a happy couple and that both
parents had consistently showed an interest in Zaynab’s school
performance. All these factors,
he suggested, had given rise to a
petition signed by a large number of people in support of the
appellant’s release on bail.
[41] In its judgment in
the second bail application the regional court dealt firstly with the
evidence relating to the appellant’s
state of health and the
suggestion, which had played an important role in the first
application, that she was no longer a suicide
risk. This was at odds
not only with the evidence of Dr Fortuin and Dr George in such
application, but also with the appellant’s
first affidavit in which
she stated that she was in a precarious mental state. In this regard
the court held that the appellant had,
in the first application,
deliberately misled it as to her true state of health, and that she
had failed to tender any explanation
for this in the second
application. It was significant that she had chosen not to testify in
either of the applications and that
both Mr Saville and Dr Bredekamp
appear to have supported this finding.
[42] The regional court
hence held that the credibility of the appellant, who bore the
onus
of proof in a bail application, had been seriously compromised,
with the result that her version of the new facts, on which the
second
application was based, could not simply be accepted at face
value. This was exacerbated by the evidence of Mr Saville relating to
the reason why the appellant chose to have the proceeds of the
insurance policy paid into a Namibian bank account, namely to keep
it
separate from her money and to create a trust in favour of Zaynab.
These facts had likewise not been revealed in the first application.
In any event the Namibian account was also in the appellant’s name
and not in that of Zaynab or of a trust to be created for Zaynab.
The
appellant hence had full control of any deposit made into this
account.
[43] In regard to the
new regime to be created at the appellant’s home, with the
introduction of Mr and Mrs Ajouaar and round-the-clock
nursing
services, the court questioned the necessity for these arrangements
in view of the fact that the appellant no longer professed
to being
in a precarious mental state. During the six months between the death
of her husband and her arrest she appeared to have
been in control of
herself and did not require medical, psychological or psychiatric
assistance. As for the information contained
in the diary of the
deceased regarding the health of the appellant, this was nothing new
since she must have been fully aware of
it, yet said nothing about it
in the first application.
[44] The court then
considered the position of Zaynab in the context of her best
interests as enjoined by section 28(2) of the
Constitution
and
with reference to the recent Constitutional Court decision reported
as
M v S (Centre for Child Law Amicus Curiae)
2007 (12) BCLR
1312
(CC). What complicated this aspect of the case was the
conflicting evidence as to whether the appellant could be considered
to be
Zaynab’s primary caregiver. Assuming that this was the case,
the court held, it could not override all other considerations but
had to be considered in the context of the case as a whole.
[45] In regard to the
allegations relating to what the court described as the “mystery
tapes”, it held that Mr Radyn was a blatant
liar who had
manipulated and abused the position in which the appellant and her
family had found themselves. The court was sceptical
about Mr
Ajouhaar’s testimony relating to his hearing the appellant’s
voice on the one tape and held that little or no weight
could be
attached thereto. In any event the tapes had no bearing on the issues
to be decided in the bail application. The same applied
to certain
inferences made from the diary and the alternative hypothesis as to
the cause of the deceased’s death. It was speculative
and had no
evidential value.
[46] The court
cautioned Captain Dryden that his credibility concerning certain
aspects of the bail application had been “severely
tainted” by a
lack of objectivity. This did not, however, assist the appellant,
whose lack of good faith in the first bail application
was sufficient
reason for the second application to be refused. The court hence
concluded that the appellant had failed to discharge
the
onus
of
proving exceptional circumstances which would, in the interests of
justice, permit her to be released on bail. The court also made
certain recommendations regarding Zaynab and her access to the
appellant.
MAIN SUBMISSIONS ON BEHALF OF THE PARTIES
[47] In his argument on
behalf of the appellant before this court, Mr Raubenheimer submitted
that the regional magistrate had acted
irregularly in dealing with
the application in that he had lacked objectivity. He had insisted on
evidence being given
viva voce
and not on affidavit, despite
the fact that in bail applications a more relaxed approach to
evidence is applied than in trial matters.
Furthermore he had made
rulings relating to the admissibility of evidence tendered by the
appellant and questions put to witnesses
by appellant’s counsel
without giving counsel the opportunity to address him. One of the
examples cited in this regard related
to the opinion of the
appellant’s son that, after reading the diary of the deceased, he
was convinced that she was not suicidal.
In his haste to complete the
second bail application, Mr Raubenheimer submitted, the regional
magistrate had ignored more than fifty
new facts placed before him.
In this regard he referred to the full written argument placed before
the court
a quo
and requested that the appeal should succeed
and bail be granted, albeit on stringent conditions.
[48] In her argument on
behalf of the respondent Ms Riley submitted that the decision of the
regional court was in line with the authorities
requiring that it
consider all the facts before it, both new and old. She supported the
court’s finding that the appellant had
failed, in the first
application, to make important disclosures relating to her state of
health. The new facts on which the appellant
relied were known to her
at the time of the first application and could hence not be regarded
as new. And if they were new, she gave
no explanation for her
remarkable recovery since the first application. In any event, if she
was functioning at the level of a normal
person, why would she
require continuous nursing services and the presence of Mr and Mrs
Ajouhaar at her home?
[49] In this regard Ms
Riley pointed out that the appellant had not seen any psychiatrist or
suffered any relapse after November 2006,
despite the vicious murder
of her husband and her subsequent arrest on a charge of murdering
him. Her decision to have cosmetic surgery
at this time was not
consistent with a person suffering from precarious mental health. The
appellant’s lack of transparency came
to the fore with great
clarity, Ms Riley submitted, in the suggestion that the emphasis in
the first application on the appellant’s
being a suicide risk had
“boomeranged” in that it prompted the court not to grant her
bail.
[50] Ms Riley was
critical of Dr Bredekamp’s report regarding the need for the
appellant to be reunited with Zaynab. She submitted
in this regard
that Dr Bredekamp had exaggerated the depth of the relationship
between mother and daughter and had conducted selective
interviews
for purposes of compiling her report. As for Zaynab’s propensity to
befriend and attach herself to strangers, Dr Bredekamp
attributed
this inappropriate behaviour to the appellant’s absence from home,
despite the fact that Zaynab’s teachers had noticed
this years
before. This, Ms Riley submitted, coloured her evidence and brought
her objectivity as an expert witness into question.
[51] With reference to
section 28(2) of the
Constitution
, Ms Riley submitted that,
although the best interests of a child were paramount, this did not
mean that they were absolute. In cases
such as the present, two
competing considerations had to be weighed by the court, namely the
importance of maintaining the integrity
of family care and the duty
of the State to punish criminal misconduct. It was, she said,
“profoundly in the interests of children
that they grow up in a
world of moral accountability where self-centred and anti-social
criminality is appropriately and publicly
repudiated”. Ms Riley
accepted that section 28(1)(b) of the
Constitution
ensures the
right of every child “to family care or parental care, or to
appropriate alternative care when removed from the family
environment”. If the primary caregiver is in custody, the court
should consider whether steps should be taken to ensure that the
child is adequately cared for. The interests of children could not,
however, be used for the benefit of parents or as a pretext for
evading the consequences of their own conduct.
[52] In the present
case, Ms Riley submitted, Zaynab’s primary caregivers had in fact
been the domestics, Nanny and Koekie, who
cared for her physical and
other needs in all material respects. Nanny was still in the employ
of the appellant and would continue
acting as primary caregiver. The
deceased, again, had provided Zaynab with both physical and emotional
care. After his death the
extended family of the appellant and the
deceased had rallied to Zaynab’s cause and had demonstrated that
they would be happy to
provide fully and generously for her emotional
and material needs.
[53] On the issue of
the merits, and more particularly regarding the strength of the State
case against the appellant, Ms Riley submitted
that the appellant had
not discharged the
onus
of proving exceptional circumstances
by adducing strong, independent evidence pointing to her innocence
(see
S v Mohammed
1999 (2) SACR 507
(C) at 517
i-j
). The
new facts upon which the appellant relied, she argued, were for the
most part selective and highly speculative. They could,
in fact, only
be tested when the appellant presented
viva voce
evidence at
her trial. It would then be for the trial court to assess the weight
to be attached thereto in the light of all the evidence.
THE RELEVANT LEGAL PRINCIPLES
[54] Section 60(11)(
a
)
of the
Criminal Procedure Act
51 of 1977
reads:
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to –
(a)
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
exceptional
circumstances exist which in the interests of justice
permit his or her release …
From this section it is
clear that the
onus
is on the accused to adduce evidence, and
hence to prove to the satisfaction of the court, the existence of
exceptional circumstances
of such a nature as to permit his or her
release on bail. The court must also be satisfied that the release of
the accused is in
the interests of justice.
[55] On the meaning and
interpretation of “exceptional circumstances” in this context
there have been wide-ranging opinions, from
which it appears that it
may be unwise to attempt a definition of this concept. Generally
speaking “exceptional” is indicative
of something unusual,
extraordinary, remarkable, peculiar or simply different. There are,
of course, varying degrees of exceptionality,
unusualness,
extraordinariness, remarkableness, peculiarity or difference. This
depends on their context and on the particular circumstances
of the
case under consideration.
[56] In the context of
section 60(11)
(a)
the exceptionality of the circumstances must
be such as to persuade a court that it would be in the interests of
justice to order
the release of the accused person. This may, of
course, mean different things to different people, so that allowance
should be made
for a certain measure of flexibility in the judicial
approach to the question. See
S v Mohamed
1999(2) SACR 507 (C)
at 513
f
-515
f
. In essence the court will be exercising a
value judgment in accordance with all the relevant facts and
circumstances, and with reference
to all the applicable legal
criteria. See in this regard the judgments in
S v H
1999 (1)
SACR 72
(W) at 77
b-i
;
S v Dlamini; S v Dladla and Others; S
v Joubert; S v Schietekat
1999(2) SACR 51 (CC) par [75]-[79] at
89
a-
90
h
;
Herbay v S
[1999] 2 All SA 216
(W) at
222
d-j
;
S v Botha en ‘n Ander
2002 (1) SACR 222
(SCA)
par [19] at 229
i-
230
d
;
S v Yanta
2000 (1) SACR
237
(TK) at 241
f-
242
d
;
S v Bruintjies
2003 (2)
SACR 575
(SCA) par [6] at 577
c-i
.
[57] When, as in the
present case, the accused relies on new facts which have come to the
fore since the first, or previous, bail
application, the court must
be satisfied, firstly, that such facts are indeed new and, secondly,
that they are relevant for purposes
of the new bail application. They
must not constitute simply a reshuffling of old evidence or an
embroidering upon it. See
S v De Villiers
1996 (2) SACR (T) at
126
e-f
. The purpose of adducing new facts is not to address
problems encountered in the previous application or to fill gaps in
the previously
presented evidence.
[58] Where evidence was
available to the applicant at the time of the previous application
but, for whatever reason, was not revealed,
it cannot be relied on in
the later application as new evidence. See
S v Le Roux en Andere
1995 (2) SACR 613
(W) at 622
a-b
. If the evidence is
adjudged to be new and relevant, then it must be considered in
conjunction with all the facts placed before the
court in previous
applications, and not separately. See
S v Vermaas
1996 (1)
SACR 528
(T) at 531
e-g
;
S v Mpofana
1998 (1) SACR 40
(Tk) at 44
g-
45
a
;
S v Mohamed
1999 (2) SACR 507
(C) at 511
a-d
.
[59] On the question
whether or not an accused should, in the interests of justice, be
released on bail, section 60(4) of the Act
furnishes five grounds,
the existence of one or more of which would preclude such release. In
the first bail application the State
relied on four of the five
grounds, but in the second application suggested that all five might
be applicable. For present purposes
only the ground cited in section
60(4)
(b)
is, in my view, of any relevance, namely “where
there is the likelihood that the accused, if he or she were released
on bail, will
attempt to evade his or her trial”. Section 60(6)
enumerates a number of factors which a court may take into account in
this regard,
including “any other factor which in the opinion of
the court should be taken into account” (s 60(6)(j)).
[60] These provisions
do not affect the right of an accused “to be released from
detention if the interests of justice permit, subject
to reasonable
conditions”, as provided in section 35(1)(f) of the
Constitution
.
They are likewise not intended to increase the burden of proof
resting on the accused to show, on a balance of probabilities,
that there are exceptional circumstances justifying his or her
release and that such release will not prejudice the interests of
justice.
See
S v Stanfield
1997 (1) SA 221
(C) at 226
c-
227
b
;
S v Yanta
2000 (1) SACR 237
(Tk) at 241
f-h
. Cf
S v
Porthen and Others
2004 (2) SACR 242
(C) par [14] at 249
c-d
.
[61] The appeal against
the dismissal of the appellant’s second application for bail comes
before this court in terms of section
65(4) of the Act. It reads:
The Court
or Judge hearing the appeal shall not set aside the decision against
which the appeal is brought, unless such Court or Judge
is satisfied
that the decision was wrong, in which event the Court or Judge shall
give the decision which in its opinion the lower
court should have
given.
In
S v Barber
1979 (4) SA 218
(D) at 220E-F Hefer J stated in
this regard:
It is
well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded
that the
magistrate exercised the discretion which he has wrongly.
Accordingly, although this Court may have a different view, it
should
not substitute its own view for that of the magistrate because that
would be an unfair interference with the magistrate’s
exercise of
his discretion. I think it should be stressed that, no matter what
this Court’s own views are, the real question is
whether it can be
said that the magistrate who had the discretion to grant bail
exercised that discretion wrongly.
[62] This approach was endorsed in cases such as
S v Nqumashe
2001
(2) SACR 310
(NC) par [20] at 314
f
;
S v Branco
2002 (1)
SACR 531
(W) at 533
i
and
S v Porthen and Others
2004
(2) SACR 242
(C) par [3]-[7] at 246
b-j
. In the
Porthen
case, however, Binns-Ward AJ (in par [16] at 249
f-h
)
expressed the view that interference on appeal was not confined to
misdirection in the exercise of discretion in the narrow sense.
The
court hearing the appeal should be at liberty to undertake its own
analysis of the evidence in considering whether the appellant
has
discharged the
onus
resting upon him or her in terms of
section 60(11)
(a)
of the Act.
[63] When, as in the
present case, the special circumstances relied on by the accused
include the constitutionally protected interests
of a minor child,
this court must, in terms of section 28(1)(b) of the
Constitution
,
take cognisance of the child’s right “to family care or parental
care, or to appropriate alternative care when removed from
the family
environment.” Inasmuch as a decision in regard to the appellant’s
bail application and subsequent appeal to this court
will, of
necessity, impact upon a child, it may not be lost from sight that
the child’s best interests are, in terms of section
28(2) of the
Constitution
, paramount. This does not, of course, mean that
such interests will simply override all other legitimate interests,
such as the interests
of justice or the public interest. It must,
however, always be taken into consideration as a relevant factor and
a general guideline
in assessing such competing rights. See
Jooste
v Botha
2000 (2) SA 199
(T) at 210C-D.
[64] The case of
M v
S (Centre for Child Law Amicus Curiae
)
2007 (12) BCLR 1312
(CC)
dealt with the interests of children whose mother had been convicted
of fraud and sentenced to imprisonment. Although the present
case
deals with incarceration of the mother of a child pending trial, the
interests of the child, it would appear, require consideration
in the
same way as if the mother had been convicted and imprisonment was
being considered as an appropriate sentence. After discussing
section
28(2) of the
Constitution
(par [12]-[26] at 1320-1325), Sachs
J held (par [26] at 1325G-H):
Accordingly,
the fact that the best interests of the child are paramount does not
mean that they are absolute. Like all rights in
the Bill of Rights
their operation has to take account of their relationship to other
rights, which might require that their ambit
be limited.
[65] On the interaction of section 28(2) and 28(1)(b) of the
Constitution
, Sachs J accepted the view that, when a custodial
sentence for a primary caregiver was in issue, the court had a
fourfold responsibility:
(a) to establish whether such a sentence
would impact on the child; (b) to consider the child’s best
interests independently; (c)
to attach appropriate weight to the
child’s best interests; and (d) to ensure that the child would be
cared for should the primary
caregiver be imprisoned (par [32] at
1327B-D). The learned Judge continued (par [33] at 1327D-E):
These
appear to me to be practical modes of ensuring that section 28(2)
read with section 28(1)(b), is applied in a sensible way.
They take
appropriate account of the pressures under which courts work, without
allowing systemic problems to snuff out their constitutional
responsibilities. Focused and informed attention needs to be given to
the interests of children at appropriate moments in the sentencing
process. The objective is to ensure that the sentencing court is in a
position adequately to balance all the varied interests involved,
including those of the children placed at risk …
He cautioned, however (par [34] at 1328A-C), that the issue was not
“whether parents should be allowed to use their children as
a
pretext for escaping the otherwise just consequences of their own
misconduct”. Parents should serve as “the most immediate
moral
exemplars for their offspring”. As primary caregivers they are
expected to “make moral choices for which they can be held
accountable”.
CONSIDERATION OF THE PRESENT MATTER
[66] The point raised
by Mr Raubenheimer as to the probable duration of the trial has, in
my view, little or no relevance for purposes
of considering the
merits or demerits of the bail appeal placed before us. And even if
it should be regarded as a relevant factor,
it can certainly not, on
a holistic approach to all the relevant facts and circumstances, bear
any significant weight. It may, of
course, be accepted that the
appellant’s continued incarceration for the duration of the trial
will be inconvenient to her and
her legal team as far as preparation
for trial and ongoing consultation during the trial are concerned.
Once again, however, this
is not, holistically speaking, a weighty
factor.
[67] As for Mr
Raubenheimer’s submission that the regional magistrate had acted
irregularly in dealing with the application in that
he had
demonstrated a lack of objectivity in respect of the appellant, it
may well be that he was, at times, somewhat impatient and
even
irritated with the manner in which the application was presented.
Certain of his rulings relating to admissibility of evidence
and of
questions put to witnesses by the appellant’s counsel might also
have been questionable. In my view, however, it cannot
be said that
he lacked objectivity. The fact that he did not deal with each and
every submission made to him by counsel simply indicates
that he
might not have regarded it as necessary to do so.
[68] On the face of it
a number of new facts, which had not been available to the appellant
at the time she brought her first bail
application, were presented in
the second bail application. I speak here more specifically of the
content of the police docket, the
diary of the deceased and the
purported existence of certain cassette tapes in support of the
allegation that the case against the
appellant was fabricated. In
regard to the tapes the credibility of Mr Radyn has been justifiably
questioned. As for the content
of the police docket and the diary, I
have some difficulty in understanding to what extent this evidence
has placed the defence of
the appellant in a new or different
perspective.
[69] The appellant’s
case relating to her precarious state of health, as presented in the
first bail application, appears to have
undergone a complete
volte
face
in the second. What makes it particularly disturbing is the
fact that Dr George was constrained to amend his initial opinion
materially
in respect of his diagnosis of the appellant’s bipolar
mood disorder and suicidal tendencies, whereas Dr Fortuin’s
suggestion
that the appellant was functioning at a 20% level has now
been withdrawn and abandoned as incorrect. In the process the
credentials
of Dr Fortuin and the reliability of Dr George’s
initial diagnosis have been brought into question.
[70] Even more
disturbing was the startling submission, in the court below, that the
allegations relating to the appellant’s being
suicidal had
“boomeranged” in the first application and hence required to be
restated. This creates the clear impression that
the appellant had
misrepresented, or failed to disclose, the true nature and extent of
her medical condition. It also raises the
question whether she has
been totally frank, honest and in good faith regarding her state of
health.
[71] In any event, even
if the appellant has indeed made an almost miraculous recovery since
the time the first application was brought,
why would it be necessary
for Mr and Mrs Ajouhaar to move into her house as caretakers and why
would she need nursing services for
twenty-four hours a day? In this
regard the fact that she apparently did not require medical or
psychiatric assistance from 30 November
2006 to 18 June 2007, when
she was arrested, and the fact that she had consulted a plastic
surgeon in February 2006 with a view to
undergoing cosmetic surgery,
militates against any suggestion that she is in need of the
assistance of the Ajouhaar couple or requires
continuous nursing
services.
[72] In this regard it
should also be pointed out that the appellant’s fainting spell in
the Worcester correctional facility does
not appear to have had any
repercussions. There has, indeed, been no indication at all that she
has suffered any relapse or might,
in the foreseeable future, be
expected to suffer a relapse. Should this occur, however, it is clear
from the evidence of Mrs Neethling,
as supported by that of Dr
Panieri-Peter and Mr Joseph in the first application, that the
correctional facility will be able to provide
her with the necessary
medical and psychiatric assistance.
[73] On the question of
Zaynab’s needs, it goes without saying that her best interests,
which are protected in terms of section
28(2) of the
Constitution
,
are of paramount importance in the present case. More particularly
she is entitled, by virtue of the provisions of section 28(1)(b)
of
the
Constitution
, “to family care or parental care, or to
appropriate alternative care when removed from the family
environment”. It is clear
from the judgments of the regional
magistrate in both the first and second bail applications that he
agonised over this issue and
gave it careful consideration. In this
court it has likewise been one of the most difficult aspects of the
case in that it has required
a careful and balanced weighing up of
ostensibly conflicting interests.
[74] The regional
magistrate assumed, with some reluctance, that the appellant was
Zaynab’s primary caregiver. On the evidence before
us, however, I
do not believe that this assumption can be justified. It seems clear
that, at all relevant times, the role of primary
caregiver was shared
by Nanny, the housekeeper, and the deceased. This does not, of
course, mean that the relationship between Zaynab
and the appellant
has not been a good one. I have no doubt that they are linked by a
powerful bond of reciprocal love and affection.
Yet it was Nanny and
the deceased who, in general, provided for her material comforts and
emotional needs on a day to day basis.
Since the death of the
deceased Nanny has continued playing this care-giving role, but she
now shares it with other members of Zaynab’s
extended family, as
appears clearly from a number of affidavits filed on behalf of the
State.
[75] I tend to share Ms
Riley’s criticism of Dr Bredekamp’s report. I was singularly
unimpressed by the lengthy and to a large
degree unnecessarily
academic introduction to the underlying principles relating to the
best interests of a child. This was followed
by a rambling and
frequently repetitive discussion of selected role players in Zaynab’s
life, and Zaynab’s own story, as a preamble
to Dr Bredekamp’s
recommendation that mother and daughter should be reunited as soon as
possible. It was difficult to escape the
impression that the report
lacked balance and objectivity.
[76] I am mindful of
the fact that Zaynab’s apparent propensity to befriend and attach
herself to strangers might become a complication.
On the other hand I
am quite satisfied that she is presently in excellent hands, under
the supervision of persons who love and care
for her and have
voluntarily undertaken this duty since the appellant’s
incarceration, if not already from the time of the death
of the
deceased. Zaynab is, in my view, in more than appropriate alternative
care, as envisaged by section 28(1)(b) of the
Constitution
.
[77] An additional
aspect which must be borne in mind is the fact that, if the appellant
should suffer a relapse, it may be preferable
if Zaynab be given
limited exposure to her rather than that she be allowed to suffer the
possibly traumatising effect of having to
be subjected to the
negative aftermath of such a relapse. Under such circumstances the
status quo
should not be disturbed, but she should
have
regular and unimpeded access to the appellant at all reasonable
times. This would, I believe, be in her best interests.
[78] The issue of
whether or not there is a likelihood that the appellant may attempt
to evade her trial remains a very real one.
Despite the undertaking
by her Namibian family that they would not allow her to become a
fugitive from justice, it would be a simple
matter for her to
relocate to Namibia. The existence of extradition arrangements is no
guarantee that she would, if she should relocate
for purposes of
evading her trial, in fact be extradited. The evidence of Ms Hacking
and Mr Saville, relating to the proposed use
of the appellant’s
Namibian account for purposes of depositing the proceeds of the said
life insurance policy as a precursor to
creating an
inter vivos
trust for Zaynab, raises more questions than it provides answers.
I agree with the regional magistrate that this constituted
information
which the appellant should have revealed in the first
bail application. More importantly, there is no guarantee that the
money, if
paid into the account, would be used for the creation of a
trust. It would in fact be at the disposal of the appellant as a
useful
nest egg for future use.
[79] The question
remains why it should be necessary for the appellant to make use of
the Namibian account if she and Zaynab are to
remain resident in Cape
Town. It would be far more convenient to have the proceeds paid into
an existing or new local account, to
be kept there until the trust
has been created. The suggestion that payment into the Namibian
account would serve to keep the insurance
money separate from the
appellant’s personal funds is absurd, to say the least. The
unavoidable conclusion to which one must necessarily
come is that
there is a strong probability that the appellant would, if released
on bail, attempt to evade her trial.
[80] The suggestion
that the State case on the merits has been weakened as a result of
new facts which have come to the fore, holds
no water. It is clear
from the proposed evidence that the State had no difficulty in
placing a strong
prima facie
case before the regional court in
the first bail application. At the present stage of the proceedings,
namely on appeal against the
refusal of the second bail application,
the question is not whether the new facts averred by the appellant
are sufficient to upset
such
prima facie
case, but whether,
taken together with the old or existing facts, they constitute
sufficiently exceptional circumstances as to satisfy
the court, in
terms of section 60(11)(a) of the Act, that the appellant should, in
the interests of justice, be released on bail.
In any event, even if
the question should be whether or not the new facts have upset the
State’s case on the merits, it is quite
clear that they have not
even managed to dent such case.
[81] The appellant has
not, as correctly submitted by Ms Riley, discharged the
onus
of
proving exceptional circumstances by adducing strong, independent
evidence pointing to her innocence. On the contrary, she has
selectively relied on highly speculative facts or on facts which she
failed to reveal in the first bail application. Such facts are
hence
not new or relevant for purposes of the second bail application. The
incontrovertible conclusion to which this court must come
is that the
so-called new facts constitute no more than a reshuffling of existing
facts with a view to addressing the problems uncovered
in the first
application. They are, for the most part, directed at supplementing
or amending the unsatisfactory aspects of such application.
CONCLUSION
[82] It must necessarily follow that, on an analysis of the evidence
as a whole, both old and new, the appellant has not succeeded
in
demonstrating that the decision of the court below was wrong and
should be set aside. In the event the appeal must be dismissed.
D H VAN ZYL
Judge of the High Court
I agree. It is so
ordered.
J M HLOPHE
Judge President of the High Court
I agree.
K E MATOJANE
Acting Judge of the
High Court