S v Harmse (CA&R 13/07) [2007] ZANCHC 23 (23 March 2007)

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[2007] ZANCHC 23
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S v Harmse (CA&R 13/07) [2007] ZANCHC 23 (23 March 2007)

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IN
THE HIGH COURT OF SOUTH-AFRICA
(NORTHERN
CAPE DIVISION)
KIMBERLEY
CASE
NO.: CA&R 13/07
DATE
HEARD: 19 -02-2007
DATE
DELIVERED: 23-03-2007
In
the Bail Appeal of:
EDEN HARMSE APPELLANT
versus
THE
STATE RESPONDENT
JUDGMENT: BAIL APPEAL
MOLWANTWA
AJ:
1. This is a bail appeal
pending the determination of appellant’s trial on a charge of
murder. The matter came before me on 19
February 2007.On 20 February
2007 after hearing argument, I then made following order upholding
the appeal of the appellant.
“
1. Application
of the appellant to be admitted for bail pending determination of his
trial is granted.
2. The appellant is
released on bail of R5 000, 00 (Five thousand rand) on the following
conditions:
2.1 He should not
interfere with any State witness, including his son and his
father-in-law;
2.2 He
should not threaten, intimidate and or communicate in
any
manner with any State witness including the two mentioned in
paragraph 2.1 above;
2.3 He should not
come or be found in Kimberley pending the determination of his trial
except on the specific days and times he appears
in the Court;
2.4 He
should report every Monday, Wednesday and Friday between 06h00 and
18h00 at Welkom or Jagersfontein Police Stations. Jagersfontein
during the week and Welkom during weekends; and
2.5 He
should not leave Welkom or Jagersfontein without the permission of
the Investigation officer: Inspector Cilliers. Should he
wish to
leave the area(s) he should notify the Investigation Officer 24hrs
prior to his departure;
3. Should
he fail to keep any of the conditions specifically
mentioned
in paragraph 2.1 – 2.5 supra and other normal bail conditions a
warrant of arrest will be authorized in this respect for
immediate
issue and execution and will forfeit his bail money.
Additional
conditions
1. The appellant
must hand over all passports, visas to the investigation officer; and
2. The appellant
must hand over any firearm that he possesses to the investigation
officer.”
2. The
appellant’s bail application was heard in the Magistrates court.
The appellant gave evidence first .It was for him to satisfy
the
Magistrate that the interests of justice permitted his release on
bail as set out in 60(11) (1) of the Criminal Procedure Act
51 of
1977 (“the Act”) which provides
inter
alia
:
“
(a)
An accused who is in custody in respect of an offence shall, subject
to the provisions of section 50(6),be entitled to be released
on bail
at any stage preceding his or her conviction in respect of such
offence, if the court is satisfied that the interests of
justice so
permit.”
(4) The
interests of justice do not permit the release from detention of an
accused where one or more of the following grounds are
established:
(a)
Where there is likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public or any
particular person or will commit a Schedule 1 offence; or
(b) where
there is the likelihood that the accused; if he or she were released
on bail, will attempt to evade his or her trial; or
(c) where
there is a likelihood that the accused, if he or she were released on
bail, will attempt to influence or intimidate witnesses
or to conceal
or destroy evidence; or
(d) where
there is a likelihood that the accused, if he or she were released on
bail, will undermine or jeopardize the objectives
or the proper
functioning of the criminal justice system, including the bail
system;
(e) where
in exceptional circumstances there is a likelihood that the release
of the accused will disturb the public order or undermine
the public
peace or security; or
(11) 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;
(b) in
Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he or she is dealt with
in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduce evidence which satisfies
the
court that the interests of justice permit his or her release. ”
3. It
is a settled principle that a court hearing a bail appeal may only
interfere with a Magistrate’s exercise of his/her discretion
refusing to admit an accused to bail if the Court is satisfied that
such discretion was wrongly exercised. See
Hefer
J
(as he was then) whereat he made the following pronouncements in
S
v Barber
1979(4) SA 218D at 220 E-G.
“
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.”
See
also
S
v Branco
2002(1) SACR 531(W) and cases cited at 533i.
4. In his Heads of
argument and orally before me Mr. Van Heerden argued that:
4.1 The
Magistrate found that the offence was a schedule 6 offence which
meant that the appellant had to show that
exceptional
circumstances
existed for him to be released on bail, which is not the correct
approach. This, he submitted was a schedule 5 offence as also
indicated
and argued by the prosecutor during the bail hearing;
4.2 The
Magistrate found that the appellant had to satisfy cumulatively all
the factors mentioned in section 60(4) a-e of the Act
before an
accused could be released on bail, which he submitted was not the
correct interpretation.
5. Section
60(11)(a) of the Act provides that where the accused is charged with
an offence which falls within Schedule 6, he carries
the burden of
satisfying the court on a balance of probabilities that
“exceptional circumstances exist”
which
permits his or her release on bail, in the interest of justice. One
of the offences listed in Schedule 6 is murder, premeditated
and/or
planned. The burden of proof is ostensibly no different from that
which is applicable in terms of Schedule 5 offences. See
S
v Botha en ‘n Ander
2002(1) SACR 222 (SCA) at
230e-f.
6. In
contrast section 60(11) (b) of the Act provides that where the
accused is charged with a Schedule 5 offence the
onus
lies with the State. The ordinary burden of proof that the interest
of justice would be best served by the continued detention of
the
accused remains with the State until such time as it has shown the
offence with which the accused is charged to be one that falls
within
Schedule 5. The State may discharge this burden by giving a full and
proper description of the alleged offence in the charge
or by leading
evidence or by resorting to a certificate from the Director op Public
Prosecutions (
“DPP”
)
in terms of section 60 (11A) of the Act.
7. It is then open to the
accused to challenge the evidence or certificate from the DPP by
himself leading evidence to counter it
or cross-examining the State
witnesses at the bail hearing with a view to show what the nature of
the alleged offence is. Schedule
5 includes the offence of murder but
not planned or premeditated.
8. I highlight and refer
to these two Schedules in order to determine whether the Magistrate
indeed adopted the wrong approach in
finding that this murder is a
Schedule 6 offence and therefore the appellant bore the burden to
prove that exceptional circumstances
existed justifying his release
on bail.
9. Section
60(11) (b) of the Act in respect of Schedule 5 offences is
distinguishable from 60(11) (a) in respect of Schedule 6 offences
in
that while the burden of proof is placed upon the accused to show
that he or she is entitled to bail, he or she is not required
to
discharge that burden by proving the existence of
exceptional
circumstances
.
A
bail application under section 60(11) (a) is more invasive of the
accused’s right to liberty than under section 60(11) (b).See
S
v Dlamini et al
1999(2) SACR 51 (CC) at 85f-g.
10. Mr.
Bagananeng for the State has argued that although this was not argued
in the Magistrate Court, there was a history of violence
by the
appellant against the deceased which indicated that the murder
in
casu
was planned or premeditated. This argument however cannot hold water
in these circumstances because the prosecutor in the bail application
who was privy to the contents of the docket and all state witnesses’
statements submitted that it was a Schedule 5 offence. Nowhere,
in
his opening address and closing address did he refer to the murder
being premeditated or planned. Nor could this be discerned
from the
record before this Court.
11. I
am of the view that the evidence at my disposal indicates that this
murder is one of the offences specifically mentioned in
Schedule 5.
See
John
Van Der Berg
in
his book
titled
Bail:
A Practitioner’s Guide
,
second edition, 2001, 69
.
The
Magistrate accordingly erred in finding that this murder was a
Schedule 6 offence and therefore that the appellant was burdened
with
the
onus
to prove
exceptional
circumstance
to be released on bail. I am therefore at large on the strength of
S
v Barber
supra
to undertake my own assessment of the evidence and come to a
conclusion whether the appellant was entitled to be released on bail
or not.
12. The evidence showed
that the appellant was a family man and was married to the deceased.
He has two minor children aged 13 and
5 years, who are in the custody
of their grandfather. The appellant is also the legal guardian of two
other children (his late brother’s),
one doing second year
engineering at Kathu and the other is a first year student at a
tertiary institution in Roodepoort. He had
been employed by
Goldfields Development at Jagersfontein and Gariepdam in the Free
State until his arrest. He earned a gross salary
of between R20 000,
00 and R35 000, 00 per month. He has no fixed property in the
Northern Cape. He is staying with his mother in
Welkom in the Free
State. He denied the allegations against him and intends to plead
not guilty at his trial.
13. During his evidence
he refused to answer any questions on the charges, after been warned
of his rights by the Magistrate and on
the advice of his counsel,
because of the fear of self incrimination.
14. The State led
evidence through the investigation officer. During cross-examination
he could not substantiate his fears that the
appellant will
intimidate or influence the state witnesses or that he would
jeopardize the administration of justice if released
on bail. He
could not say that the appellant was a flight risk; that he would not
stand trial or would commit a Schedule 1 offence.
15. I have considered all
the factors in s60(4)( a-e) of the Act mentioned above (para 3) and
have weighed the interests of justice
against the appellant’s right
to freedom and in particular the prejudice he is likely to suffer if
he is to be detained in custody
until this matter is finalized. I am
unable to agree that these factors individually or cumulatively
raised the probability that
the appellant would act in a manner
inimical to the State case. There was a complete absence of any
substantiated allegation that
the appellant will intimidate any state
witness. To the contrary there was fear that he, the appellant, would
kill himself which
he emphatically denied.
16. What was clear on
record, but was overlooked by the Magistrate, was that there was no
evidence that the appellant had attempted
to influence any witnesses
including his son and father–in-law prior to or after his arrest.
The appellant had undertaken under
oath that he would not make
contact with them if released. The conclusion that the appellant is a
danger to himself and will not
desist from contacting his children is
devoid of factual support. As a possibility it was no more than
speculative.
17. The appellant is
working and the sole bread-winner for his family including his minor
children. He has committed himself not
to have any contact with them
but to continue to maintain them. He is not staying in Kimberley any
more. Even before this incident
he had been staying in Welkom in the
Free State whereas the state witnesses stay in Kimberley in the
Northern Cape. The prosecution
has already formulated a charge of
murder against him. There are no investigations outstanding apart
from the DNA results from the
forensic laboratory. The appellant does
not have a passport or visa. In the circumstances the interests of
justice, considered in
the context of section 60(4) (a-e) of the Act,
and taking into account his personal circumstances, lean in favour of
the appellant
to be granted bail.
It
is for these reasons that I made the order in para 1
supra
.
________________________
B
C MOLWANTWA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
Date
heard: 19-02-2007
For
Applicant: Adv Van Heerden
For
Respondent: Adv Baganeneng
On
behalf of Director of Public Prosecutions, Kimberley