Faas v S (153/2008) [2008] ZAWCHC 23 (29 April 2008)

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[2008] ZAWCHC 23
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Faas v S (153/2008) [2008] ZAWCHC 23 (29 April 2008)

IN THE CAPE HIGH COURT
OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: 153/2008
In the matter between:
BRENDAN FAAS
Appellant
vs
THE STATE Respondent
JUDGMENT: 29 APRIL
2008
Meer, J:
[1] This is an appeal in terms of Section 65 of the
Criminal Procedure Act No. 51 of 1977 (“the Act”) against the
refusal by a
Magistrate of the Blue Downs Magistrate’s Court to
grant bail to the Appellant on 19 December 2007. The Appellant is to
be tried
later this year in this Court as a Superior Court. The
notice of appeal indicates that the Magistrate refused to grant bail
on new
facts.
[2] The charges for which the Appellant is to be tried
in this Court, as contained in the indictment, are as follows:
Conspiracy to murder Lukas Kok in contravention of
Section
18 Act 17
of 1956.
Attempted murder of Lukas Kok.
Murder of Michaela Kok.
Possession of firearms without the requisite license in
contravention of Act 60 of 2000.
Possession of ammunition without the requisite license
in contravention of Act 60 of 2000.
Conspiracy to murder Elverecia Pennings in
contravention of Section 18 of Act 17 of 1956.
[3] The grounds of appeal in essence are that the
Magistrate erred in finding there to have been no exceptional
circumstances justifying
the Accused’s release on bail, and in not
having due regard to his personal circumstances as well as the
factors listed in Section
60(4) to (9) of the Act.
[4] Two bail applications were brought in the Court
a
quo
by the Appellant. In refusing the first
application on 13 September 2007, the Magistrate found on the
evidence, that Appellant planned
to kill a state witness. She also
found there to be an absence of exceptional circumstances. In
refusing the second bail application
on 19 December 2007, on new
facts, the Magistrate found no reason to deviate from her decision
not to grant bail.
[5]
The record of the proceedings in the Court
a quo
make for
confused and difficult reading. The transcript clearly does not
record all that was said in Court, is peppered with the
comment
“inaudible” next to incomplete sentences, and the reader is
required to read between the lines, as it were. This is
unsatisfactory. It goes without saying that proceedings must be
properly transcribed and checked in the interests of justice. This
is especially so to enable expeditious and efficient appeal
proceedings.
[6] A further unsatisfactory factor, as appears from the
record, is that the charge sheet for the charge of conspiracy to
murder a
witness, the charge in respect of which Appellant applied
for bail, was not before the Court
a quo
during the bail applications. Instead an incorrect charge sheet for
the charge of attempted murder was presented to the Court
a
quo
.
[7] From a reading of the problematic record of the two
bail applications, I was with difficulty able to cobble together the
following
background facts, which were today confirmed by counsel at
this hearing: The appellant and three others were charged with the
murder
of a baby, Michaela Kok. The state alleges that they had aimed
and planned to kill her father Lucas Kok, a gang leader, but had shot
his baby daughter instead, who was in his arms at the time. The
motive for the murder according to the testimony of Investigating
officer Captain Pretorius, was drug related, and the murder of De Kok
had been planned by Appellant who himself was not present
at the
shooting.
[8] The Appellant and two of his co accused to the
murder charge were each granted bail of R500. It would appear that
the only bail
condition was that Appellant could not enter the area
of Spandou in the Western Cape. According to Captain Pretorius, the
reason
for bail being granted to Appellant on the murder charge, was
that the names of the state witnesses had not been disclosed. Whilst
out on bail, the Appellant was rearrested and charged for conspiring
to murder a key state witness in the murder trial. It is in
respect
of the refusal of bail on that conspiracy charge that the current
bail appeal stems.
[9] Testifying at the first bail application in the
Court
a quo
, Captain
Pretorius stated, appropo
the
conspiracy charge, that he had a statement from one of the persons
involved in planning to kill the key witness in the murder
trial, to
the effect that Appellant had planned that the witness, a woman of
25, would be shot by someone else whilst walking in
an alley, after
being fetched from her house. He also had other supporting statements
to this effect. Pretorius had also received
complaints that
Appellant had not adhered to his bail condition.
[10] In his testimony Appellant himself confirmed there
was a plan to kill the state witness but denied he was involved. He
had heard
from one, Mogabe, that the witness was dangerous and must
be killed. He claimed to have abided by his bail condition, attested
to
a fixed address of 20 years, to being in a relationship for 3
years and having held down fixed employment for 5 years. He had
contact
with one of his 3 co accused in the murder trial. This much
appeared from the proceedings in the first bail application.
[11] In refusing the first bail application, the
Magistrate accepted Pretorius’s testimony about Appellant’s plans
to kill a
witness, and cited Section 60 (4)(vi) of the Act which
excludes bail where there is a likelihood that an accused will
attempt to
influence or intimidate a witness or destroy evidence. She
stated also that as Appellant was involved in a murder case with
other
accused, he had to show exceptional circumstances existed in
the interests of justice permitting his release on bail, and had
failed
to do so. Her reference to exceptional circumstances is
somewhat baffling, there being no evidence before her that the bail
application
pertained to a Schedule 6 offence, which requires the
consideration of exceptional circumstances as a factor.
[12] At the second bail application on 19 December
2007, the Appellant attempted to procure bail on new facts. From the
record of
those proceedings, (also again punctuated with the word
“inaudible”,) it would seem that Mr Scott for Appellant
presented as
a new fact that Appellant himself had been threatened at
the instance of Lucas De Kok, aforementioned, by the latter’s
girlfriend.
Mr Scott said he was applying for bail on these new facts
“
ex parte
”, and
that Appellant would not testify. What then followed in Scott’s
submissions on the new facts, approximated Scott’s giving
evidence
from the bar, untempered, I note, by either the prosecution or the
Court.
[13] The prosecutor indicated that the state was not in
possession of the dockets and it was difficult to consider the facts.
The
question then arose as to whether the murder charge against
Appellant was a Schedule 5 or 6 offence. There was some deliberation
on this aspect but no clarity emerged. Captain Pretorius who again
testified, once more opposed bail, adding as another reason for
refusal, the fact that, from the new evidence the Appellant’s life
was now also in danger.
[14] In her judgment on the second bail application,
after acknowledging that the application was on new facts, and that
the previous
bail application had been refused, the Magistrate once
again, out of the blue it would appear, made the following somewhat
incoherent
and startling observation, and I quote:
“
This
bail application at that stage was treated as Schedule 6 which the
defence confirmed thereto. And that’s for the purpose of
this bail
on new facts seeing that this is (s)till a question the Court will
again make a comment thereto and show why does the Court
rule that it
is still a Schedule 6”
1
.
[15] She then said,
“…
the
Court agrees the conspiracy to murder on this matter is a Schedule 1
because it falls under Schedule 1. But accused is out on
a Schedule 6
matter where there is four accused that acted in February of a common
purpose that made Schedule 6. I will comment if
and when called upon
to do so but my view is that this is a Schedule 6 bail application.”
2
I note
that the Magistrate did not comment on this aspect when reasons were
requested from her for the purpose of this appeal, stating
merely in
lieu of reasons that she had nothing further to add.
[16] The judgment concluded that in the previous bail
application, bail was refused because a witness was planned to be
killed. In
the second application the new facts indicated that if
bail was granted there would still be a problem as the accused and
the witness
are in the same area. Bail was then refused.
[17] It is difficult from the record or indeed the
indictment to find support for the Magistrate’s conclusions that
the murder
with which the Accused is charged is a Schedule 6 murder,
and that any of the bail applications were in respect of a Schedule 6
offence.
There is no charge sheet in the record to this effect, nor
does the indictment reflect a Schedule 6 offence. The only charge
sheet
in the Court
a quo
,
as aforementioned, was the incorrect one for attempted murder. The
record, on the contrary, indicates that the two bail applications
were in respect of a charge for conspiracy to murder, that bail of
R500 had already been granted on the murder charge whereafter
the
current conspiracy charge arose.
[18] It is further difficult to understand why, if the
Magistrate concluded she was dealing with a bail application for a
Schedule
6 offence, she did not consider in terms of Section 60 (11)
(a) of the Act, at the second bail application, if exceptional
circumstances
existed which in the interests of justice permitted
Appellant’s release, the applicable test in bail applications for
Schedule
6 offences.
[19] As is well known an Accused who has been charged
with an offence referred to in Schedule 6 of the Act, faces the onus
to adduce
evidence to satisfy a Court on a balance of probabilities
that exceptional circumstances exist which in the interests of
justice
permit his release. Examples as to what would constitute
exceptional circumstances in the context of Section 60(11)(a) range
from
exceptional circumstances relating to an Accused’s emotional
condition that render it in the interests of justice that release
on
bail be ordered notwithstanding the gravity of the case, (
S
v Dlamini 1999(2)
SACR 51CC, at paragraph
76), to strong independent evidence of an Accused’s innocence
indicating reasonable prospects of success
at his trial, (
S
v Mohamed 1999(2)
SACR 507 at 514d),
acceptable evidence that the prosecution’s case against an Accused
is non-existent or subject to serious doubt,
an urgent serious
medical operation or terminal illness (
S v
Jonas 1998(2)
SACR 673(SEC) at 678e-i). The
Appellant failed to adduce any evidence which approximated the
existence of exceptional circumstances
which in the interests of
justice permitted his release and the Magistrate appeared not even
vaguely to have enquired into this aspect
before reaching her
conclusions.
[20] In simply concluding without any confirmation, as
she did, that a Schedule 6 offence was applicable after this question
arose
as aforementioned, the Magistrate, in my view was in
contravention of Section 60(11A)(c) of the Act which states:
“Whenever the question arises in a bail application or during bail
proceedings whether any person is charged or is to be charged
with an
offence referred to in Schedule 6, a written confirmation issued by
an attorney general under paragraph (a) shall, upon its
mere
production at such application or proceedings, be
prima facie
proof of the charge to be brought against that person.”
The
Magistrate could also under Section 60 (3) of the Act, have ordered
that information be placed before her on this aspect, or have
called
for the missing docket. The record does not indicate that she
resorted to either of these measures.
[21] It became common cause during the appeal
proceedings, that both bail applications pertained to the charge of
conspiracy to
murder, a Schedule 1 offence. The provisions of
Section 60 (4) are relevant to the determination of bail for such an
offence. Given
the undisputed evidence about a plan to kill a key
witness and the additional evidence of threats of violence against
the Appellant,
I am satisfied that the grounds set out at Section 60
(4) (a), (c) and (d) of the Act for refusing bail, have been
established, and
the interests of justice do not permit the
Appellant’s release, for this reason.
[22]
Section 65(4)
of the
Criminal Procedure Act
provides
that this Court can set aside a decision in respect of bail,
against which an appeal is brought, if satisfied that the decision
was
wrong. In light of all of the above, whilst I am critical of and
indeed puzzled by of the Court
a quo’s
reasoning, I am nonetheless of the view that the decision to refuse
bail was not wrong. The appeal is accordingly dismissed.
_______________
MEER, J
1
lines
5to 25; p67 lines 1tp2”
2
Record
page 68 line 8 to 20