S v Gade (12/06) [2007] ZANCHC 20; [2007] 3 All SA 43 (NC) (9 March 2007)

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[2007] ZANCHC 20
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S v Gade (12/06) [2007] ZANCHC 20; [2007] 3 All SA 43 (NC) (9 March 2007)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern
Cape Division)
Appeal no: 12/06
On roll : 07/03/ 2007
Date delivered: 9/03/ 2007
In
the appeal of :
SIPHUMLE GADE APPELLANT
and
THE STATE RESPONDENT
Coram:
Makhafola A J
BAIL
APPEAL JUDGMENT
MAKHAFOLA
A J:
This is an appeal against the
refusal to grant bail by the Magistrate Court for the district of
Gordonia sitting in Upington launched
by Accused 3, the Appellant,
pending his trial on a charge of robbery with aggravating
circumstances.
The appeal is opposed by the
prosecution generally and the evidence of Inspector J J P Muller was
tendered before court to oppose
bail.
From the record it is clear
that the appellant launched an application for bail twice before the
same magistrate and it was refused
twice. The offence with which
the appellant is charged is a schedule 6 offence of the
Criminal
Procedure Act 51 of 1977
.
Vide: Record: Pages 49-86
(first application)
Record: Pages
93-106(Second application)
S v Acheson
1991 (2) S
A 805
(NMHC) at 821 F-H.
S v Vermaas 1996(1) SACR 528(T) at 531 e-f.
It
is common cause that Accused 1, 2 and 4 who are charged with the
appellant have been granted bail though not by the same Magistrate
who refused the appellant bail.
Vide: Record: Page 87: lines
23-24
It is now trite that the
procedure to be followed in bail applications which fall under
Schedule 6 is not different from that which
applies to Schedule 5
applications. Before the onus falls on the accused a jurisdictional
factor has to be established by a certificate
from the Director of
Public Prosecutions or full description of the charge in the
charge-sheet.
Vide: Section 60(11) (a) of
Act 51 of 1977.
Section 60(11A) of Act 51 of 1977.
It is so that once the
incidence of onus has shifted to an accused person then the accused
will begin to lead evidence orally or
by way of affidavit. The
accused must prove the existence of “exceptional circumstances”
on a balance of probabilities that
it will be in the interests of
justice for him or her to be released on bail.
The position as described above
was satisfied. The appellant’s affidavit was formally read into
the record by his counsel and
he was thereafter cross-examined by
the prosecution.
The appellant placed evidence
before court raising the following issues:
abscondment
interference with
statewitnesses
endangering public safety and
committing further offences
interference with police
investigations
jeopardising the criminal
justice system. Added to these the following circumstances of the
appellant were placed before Court:
He is a taxi operator
residing at 15 Thunga Street, New Brighton, Port Elizabeth.
He earns from the taxi
business R1000-00 per week.
He employs two taxi drivers
for his business
He co-operated with the
police to make himself available for arrest at his home even after
having been informed that Inspector
Swanepoel wanted to arrest him
for an alleged robbery in Upington.
He has no passport
He has no previous
convictions
There are no warrant of
arrests circulating against him.
He
did not flee from the police
He does not possess or own
any firearm
He is married with no
children
His wife is employed as a bus
driver by Algoa Bus Company
Nothing connected to the
crime was retrieved from him.
The prosecution led the
evidence of Inspector J J P Muller who has 24 years service in SAPS
and is based in Upington. He is also
involved in the investigation
of the main case of robbery.
Vide: Record: Page 16 lines
19-24
The inspector indicated that
he was opposing bail. He had confirmed the appellant’s
residential address. On this first round
of the application bail
was refused. He later withdrew his opposition of bail as told to
the court by the defence.
Vide: Record: Page 68: lines
22-23
On 7 December 2006 the
appellant was back in court for second bail application on new
facts.
Vide: Record: Page 93: line
20
Page 97:
lines 1 and 9
The new facts are as follows:
The appellant’s wife’s employment contract with Algoa Bus
company has expired; his wife will
not be able to pay his legal team
which represents him; there would be no money to pay Mr Meyers who
represents his wife in a case
where the police had impounded her
car; his taxi as a source of the family income to pay debts is no
longer operating; his father
who is 81 years old is sick with
diabetes and has a problem in his leg and appellant is the one
staying with him and looking after
him. He is the one who receives
pension grant at the paypoints for his father, and he has not done
so for the past two months.
His two taxi drivers left his
employment.
In this second leg of the
application the appellant testified
viva
voce
and the state
did not lay any evidence before the court to rebut the new facts.
Vide: Record: Page 102 lines 22-24.
In terms of Section 60(10) of
the Act a duty is imposed on a Court hearing bail application to
weigh up personal circumstances of
the accused against the interests
of justice. This applies equally to unopposed bail applications.
The prejudice the accused
will likely suffer has to be balanced by
taking into account factors enumerated in Section 60(9) of the Act.
There is a disturbing aspect in
the record depicting a delay in the hearing of the appellant’s
bail application. The glaring
factors are as follows:
the late starting of the
proceedings
the unavailability of the
presiding judicial officer who would leave the proceedings
half-way to attend to other matters;
the unavailability of
interpreters;
the unavailability of public
prosecutors; and
the absence of the
investigating officer and a delay occasioned by waiting for him.
This bungle-up is unacceptable
as it delayed justice and in the process prejudiced the appellant.
Perhaps in particular to Upington
the administrative arm needs to be
brought to the attention of the relevant authorities so that the
workings there should be “BATHO
PELE” – “PEOPLE FIRST”
conscious as other places in the country.
QUESTIONING BY THE COURT
The general principle about
questioning a witness by the court is noble and sound. The court
has the right to question any witness
at any stage of the
proceedings the main purpose being to clarify and clear up points
which are still obscure.
The record indicated that the
appellant’s wife is employed by Algoa bus Company and that she is
a bus driver. This was indicated
already in the first application
for bail when the appellant’s affidavit was read into the record.
Vide: Record: Page 51: lines
11-12.
There is
nothing obscure about where the appellant’s wife works and in what
capacity she works. The manner of asking the questions
depicted on
page 100 lines 24-25 and pages 101-102 of the record clearly reflects
cross-examination by the Court.
In
Human
v Moolman
[1968 (4)] S A 341
[AD] at 344 D-G
the learned Judge of Appeal (Wessesl , JA) expressed regret that,
the Court
a quo
did not at all times conform to the generally accepted norm. The
following is stated:
“
He sought from time to
time to expedite the hearing of the matter by virtually taking over
from Counsel both the examination and cross-examination
of witnesses.
In doing so, it appears that he may at times have overlooked the
Judge’s usual role in our system of civil trial
procedure, and to
have associated himself too closely with the conduct of the case,
thereby denying himself the full advantage usually
enjoyed by the
trial judge who, as the person holding the scale between the
contending parties, is able to determine objectively
and
dispassionately, from his position of relative detachment, the way
the balance tilts. The limits which a judge should observe
in
intervening in the conduct of proceedings over which he presides were
dealt with by this court in R v Roopsingh,
1956 (4) S A 509
(AD).”
Lord Green (MR) had the
following to say on the subject:
“
the judge who himself
conducts the examination …descends into the arena and is liable to
have his vision clouded by the dust of
conflict. Unconsciously he
deprives himself of the advantage of calm and dispassionate
observation.”
Vide: Yuil v Yuil
[1945] 1
All ER 183
(CA) 189.
The sentiments expressed in the
above-cited cases remain salutary and state in no uncertain terms
the limits of a presiding officer
when questioning a witness to
clarify points which are still obscure in his or her evidence.
The Magistrate has had regard
to withdrawn charges against the appellant to deny him bail.
Vide: Record: Page 85: lines
17-19
Record: Page 105: lines 24-25
Record: Page 106: lines 1-4
Although bail application
proceedings are
sui
generis
and
inquisitorial in nature
(Vide:
Ellish v Prokureur -
General (WAA) 1994 (2). S A C R 579(T) at
596 e)
they remain
court proceedings and unless the law stipulates otherwise, the
time-tested procedures and practice that maintain fairness
and
justness of procedures should be adhered to.
From the record it is clear
that the Magistrate did enter the arena. This manner of conducting
the proceedings is irregular because
it compromises the impartiality
of the presiding officer. Whereas regard to withdrawn charges, in
my view, exaggerates and magnifies
unnecessarily the pending trial
the appellant is facing and it has impacted negatively to the
granting of bail.
EVALUATION
In the second leg of the
application the court had to deal with the evidence of the appellant
only because the application was no
longer opposed. The court had a
duty to act in terms of Section 60(10) of the Act.
The court appears not to have
taken the new facts as new by balancing them with the facts in the
first application and the interests
of justice.
Vide: Record: Page 105 line
19-25 where the Magistrate said:
“I stand by the
decision I made last time, when we were together and t0he basis for
that sir, is what I said to you. Armed robbery,
robbery with
aggravating circumstances, is the rape of the economy, is the rape of
your people of our country. It is an offence
worse than rape and I
said to you, at that stage although you are regarded as innocent
until proven guilty by a Court of law, the
fact of the matter is that
you have two provisionally withdrawn charges of armed robbery against
you. One in East London and one
in Port Elizabeth, as a charge of
possession of an unlicensed firearm and I said to you at the last
hearing, that just says to me
that I must be very careful before I
release a person
who
has possibly been involved in these sort offences
(my
own underlining). It is not easy for me, I know how you feel at this
stage, but I cannot- if I weigh your right to be released
against the
right of the community to be at least protected until a Court of Law
decides your fate. I cannot take the responsibility
on me. Your
application is refused, you are kept in custody.”
Vide: Record: Page 106 lines
1-8.
Vide: Rex v Ndhlovu
(1945, AD
369
at 386)
w
here
it is stated that
“the jury should not
speculate on possible existence of matters upon which there is no
evidence or the existence of which cannot
reasonably be inferred from
the evidence.”
The above passage which is part
of the judgment of the Magistrate does not address the appellant’s
presumption of innocence at
this pre-trial stage coupled with the
avoidance of unwarranted punishment of the appellant before
conviction and sentence.
I do not find in this judgment
where the Court analyses the appellant’s sole evidence meeting or
not meeting the requirements
for the test of “exceptional
circumstances” justifying the granting of or refusing bail.
In
Siwela
v S
[2000] 1 ALL SA 389(W)
at 410 g-h the court had regard to the history of the case namely:
the lengthy incarceration of the accused, his conduct thereafter
and
the conduct of the state and stated as follows:
“The
lengthy incarceration of the accused, his conduct thereafter and the
conduct of the State in this case persuade me that in
all the
circumstances set out above, on a judicial evaluation thereof, fall
within the ambit of “exceptional circumstances”,
bearing in mind
the principles set out in the authorities to which I have referred.
In my judgment therefore the facts set out
in detail in this
judgment, do constitute such “exceptional circumstances” as are
envisaged in section 60(11)(a). To hold
otherwise would, in my
judgment, and on the particular facts of this case, render the proof
by the accused of “exceptional circumstances”
to be such an
insurmountable obstacle as to render the right of an accused to
satisfy the court that such exceptional circumstances
exist,
illusory.”
From the totality of the
evidence there exist no
prima
facie
indications
that the proper administration of justice and the safe-guarding
thereof will be defeated or frustrated if the appellant
is admitted
to bail. The court would be justified to refuse bail if such
indications existed.
Vide: S v Essack 1965(2)
161[D &Coast Local Division]at 162 C-E.
In S v Dlamini
[1999] ZACC 8
;
1999 (2)
SACR 51(CC)
at
pages 63f - 64a paragraph 11 the sentiments expressed there are to
the effect that the Court’s focus at bail application is
the
possible guilt to the extent it may bear or where it borders on the
interest of justice in regard to bail.
Consequently, I find as
follows:
that the prosecution in its
opposition to bail relied on the charge of robbery with aggravating
circumstances which is lacking
in persuation that the court hearing
bail application could not even
prima
facie
express a
view of the strength or weakness of the case against the appellant.
That there exists exceptional
circumstances when the appellant’s personal circumstances are
weighed against the interests of
justice.
That there is insufficient
evidence to justify the court to refuse admitting the appellant to
bail.
That the magistrate did enter
the arena to the prejudice of the appellant.
That the appellant has
discharged the onus, on a balance of probabilities, that the
administration of justice will not be jeopardised,
defeated or
frustrated if he is admitted to bail on the strength of the
evidence placed before the court
aquo.
Both Counsel for the state and
the defence agree on the amount of bail and that the normal bail
conditions should prevail should
I decide to grant bail to the
appellant.
I am alive to the provisions of
section 65(4)
of the
Criminal Procedure Act 51 of 1977
that 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.
I now pronounce that the
decision of the Magistrate is wrong in refusing to admit the
appellant to bail and that decision is accordingly
set aside.
In the result the appeal
succeeds and I make the following order:
The appellant is
released on bail pending his trial.
Bail is fixed in the amount
of R3000=00 (three thousand rand) payable at the Magistrate
Upington.
The prosecution should
supply the appellant with a list of state witnesses.
The prosecution should
supply the appellant with the name of the present investigating
officer.
The following conditions
apply:
The appellant is to report
at New Brighton Police Station on Mondays and Fridays between
09H00-11H00.
The appellant should not
interfere and/or intimidate the state witnesses.
The appellant should not
leave the Magisterial district of Port Elizabeth without informing
the investigating officer.
______________
MAKHAFOLA
K
Acting Judge of the
High Court
Northern Cape Division
On behalf of the Appellant : Adv.
J J Schreuder
Instructed
by : Legal Aid Board, Kimberley
On
behalf of the Respondent: Advocate Louw
Instructed
by : Office of the D P P, Kimberley.