Petersen v S (A465/07) [2007] ZAWCHC 52 (5 September 2007)

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[2007] ZAWCHC 52
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Petersen v S (A465/07) [2007] ZAWCHC 52 (5 September 2007)

27
JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
: A465/07
DATE
: 5
SEPTEMBER 2007
In the matter between:
NAJWA PETERSEN
Appellant
and
THE
STATE
Respondent
JUDGMENT
WHITEHEAD, AJ
On 12 July 2007 the Regional
Magistrate (whom I shall refer to as the Magistrate) at Wynberg
refused the Appellant’s application
to be released on bail.
The Appellant now appeals against that
decision. She was arrested on 18 June 2007. She (and three others)
are to be charged with
the murder of her husband on the night of 16 –
17 December 2006 at their home; and at the same date and address
robbing her son
of cell phones, watches and R1 600 in cash.
These are offences referred to in
schedule 6 of the Criminal Procedure Act 51 of 1977 (the Act).
The bail application before the
Magistrate commenced on 26 June 2007. Evidence from both the State
and the Appellant was heard over
the five days. The record consists
of 141 pages of exhibits, 527 pages of evidence and a further 130
pages of argument and the Magistrate’s
judgment. This appeal was
argued – essentially for a full court day – on 31 August 2007.
Advocate
Webster
appeared for the Appellant and Advocate
Riley
for the State. I record my appreciation to both counsel for their
heads of argument and respective presentations of their oral
argument.
Section
60(11)(a) of the Act provides;
“
(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, 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.”
The onus is on the Appellant to
establish the “exceptional circumstances” referred to in Section
60(11)(a) of the Act. As described
by the Constitutional Court
“unless there is sufficient material to establish that the
interests of justice do permit the detainee’s
release, her
detention continues”.
S v
Dlamini
1999(2) SA50(CC) at
76g.
It was also held by the Constitutional
Court in that case that applicants for bail “actually have to
adduce evidence. In addition,
the evaluation of such cases has the
predetermined starting point that continued detention is the norm”
(at 84c-e). Furthermore
Section 60(11)(a) “contemplates an
exercise in which the balance between the liberty interests of the
accused and the interests
of society in denying the accused bail,
will be resolved in favour of the denial of bail, unless exceptional
circumstances are shown
by the accused to exit” (at 85c-d).
Broadly described exceptional
circumstances are unusual, or out of the ordinary which relate to the
crime, the applicant’s personal
circumstances or any other cogent
circumstances.
S v Dlamini
supra at 89 b
Herbay v S
1999(2) All SA 216 (W) at 222 e-h.
S
v Botha
2002(1) SACR 222
(SCA) at 229i – 230a.
S v
Bruintjies
2003(2) SACR 575
(SCA) at 577e – g.
Section
65(4) of the Act provides:
“
The
Court or Judge having 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 will give a decision which in its or his opinion the
lower
court should have given.”
In considering the effect of Section
65(4) it has been held 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 view are,
the real question is whether it can be said that the magistrate who
had the discretion to grant bail exercised that discretion wrongly
“
S
v Barber
1979(4) SA 218 (D)
at 220 E – H. See also
S
v Porthen and Others
2004(2) SACR 242 (C) at 249c – 250b.”
At the bail application the State
relied on four grounds in opposition, a likelihood that the
Appellant, if released on bail, would:
endanger the safety of the public
(Section 60(4)(a) read with Section 60(5) of the Act);
attempt
to evade her trial (Section 60(4)(b) read with Section 60(6) of the
Act);
attempt to influence or intimidate
witnesses (Section 60(4)(c) read with Section 60(7) of the Act);
disturb the public order or undermine
the public peace or security (Section 60(4)(e) read with Section
6)(8)(A) of the Act);
Section 60(9) of the Act, in addition,
records 7 factors that have to be taken into account.
At the bail application the following
five grounds were “advanced” – as described in the heads of
argument drafted by Advocate
Webster
on behalf of the Appellant – as constituting the necessary
exceptional circumstances which in the interests of justice permitted
her release on bail. It was argued at the bail application and again
in this Appeal that the Appellant: has a long, well documented
history of severe psychiatric problems; and was in a precarious
mental state at the time of the application; and needs appropriate
psychiatric care, medication and support on an ongoing basis; and
will not be provided with the type of care that she needs from
the
Department of Correctional Services; and needs to look after her
eight year old daughter.
At the bail hearing a detailed history
of the Appellant’s psychiatric problems and the treatment she had
received was provided through
the evidence of the psychiatrists Drs
Fortuin and George. Advocate
Webster
submitted that their evidence and their reports,
Exhibits
“C” and “E”
respectively set out a history of severe psychiatric problems from 16
March 2003
to
the present
(my emphasis).
This submission is not correct. Dr
Fortuin treated the Appellant from 16 March 2003 to 23 May 2006 as
recorded in his report (Exhibit
C) and clarified in evidence. From 8
September 2006 Dr George treated the Appellant after she was admitted
to Crescent Clinic.
Thereafter until 20 September 2006 he prescribed
eight electro-convulsive treatments and medication detailed in his
report (Exhibit
C). She responded positively to the treatment and
medication. After her discharge from that clinic on 20 September
2006, the Appellant
consulted Dr George on an out-patient basis on 26
October 2006. On that occasion “she seemed to be appropriate and
happy with
her mental state” On 30 November 2006 he had a
telephonic consultation with her.
Cross-examination of Dr George
established that from 30 September 2006 till her arrest on 18 June
2007, the Appellant had not seen
a psychiatrist – despite the
murder of her husband on 16 – 17 December 2006. Dr George
testified that he had wondered if the
Appellant would have a relapse
after her husband’s murder. He assumed she had not because it may
have been “a perpetuation of
the beneficial effects of the ECT that
stabilised her”. Dr George is referring here to the eight
electro-convulsive treatments
that the Appellant received in
September 2006. On further questioning from the magistrate, Dr
George conceded that it was “uncommon
or strange” that the
Appellant had not suffered a relapse.
Dr Panieri-Peter is a psychiatrist
working at the forensic unit at Valkenberg Hospital. She testified
on behalf of the State. Her
evidence on this aspect on, enquiry
initiated by the Magistrate, was “from 20 September until her
arrest and every time she was
seen she didn’t require
hospitalisation, and in fact only saw her treating psychiatrist once
in that time. Most people would say
that when one sees the patient
six-monthly they are considered to be stable”. Furthermore “it is
odd that she did not require
her psychiatrist, who she knew very well
and who she had a therapeutic relationship with and who clearly was
very available. It
is odd that if her condition was so severe she
did not require to see that person from 30 November onwards. That’s
all I can say
with certainty. And it is odd that if someone has such
a severe bipolar mood disorder that they can’t be held in a
standard place
where people awaiting trial are held, that the death
of her husband in front of her eyes wasn’t sufficient to cause
relapse.”
In re-examination of Dr Panieri-Peter
it was established that the Appellant had on 6 February 2007
consulted a medical specialist
in regard to cosmetic or lipo-suction
surgery. Dr Panieri-Peter then drew the inference “at the time
that she consulted that particular
doctor that her mental illness
wasn’t as bad as has been described and it was likely that she
wasn’t mentally ill then for the
same reason as she didn’t
consult her psychiatrist. “On the evidence this was the only
medical practitioner that the Appellant
had consulted after 26
October 2006 until her arrest on 18 June 2007.
After her arrest on 18 June 2007 Dr
George on 20 June 2007 at her family’s initiative “evaluated”
her at the police cells at
Bellville South. The Appellant was upset,
tearful and agitated but there was no sign of an obvious relapse.
On a second visit at the police cells
Dr George was concerned about her and he adjusted her medication to
make it a bit stronger because
she was not sleeping. Under
cross-examination he conceded that the Appellant’s insomnia could
have been attributed to the fact
that she had been charged with a
serious crime and that there was a possibility of a prison sentence.
On a third occasion at the police
cells on 26 June 2007 Dr George testified that she seemed to be
better. The Appellant looked better
and said she was feeling better.
There was no sign of a relapse.
On his fourth visit to the police
cells on 30 June 2007 the Appellant was not communicative. She lay
crying and did not respond to
him. Dr George adjusted her
medication. Her main complaint was again insomnia. Over the four
visits he described the sort of pattern
he had seen in the Appellant
from a psychiatric point of view as fluctuating, unpredictable and
unresponsive to medication.
This limited analysis of the relevant
evidence illustrates why Advocate
Webster’s
submission that the Appellant has a history of severe psychiatric
problems from 16 March 2003 “to the present” is incorrect.
It
also establishes that Advocate
Webster’s
further submission that the Appellant’s precarious mental state at
the time of the bail application was not refuted, is similarly
incorrect. The high watermark of the Appellant’s case on these two
grounds was the evidence of Dr George that the Appellant’s
continued incarceration was likely to cause ongoing deterioration in
her mental state as he had discerned signs that Appellant was
on the
verge of a psychotic relapse and saw this as a likely consequence of
ongoing incarceration. The evidence relied on by Advocate
Webster
in this context was speculative and improbable. The Appellant’s
insomnia, lability and agitation manifested after Dr George’s
second visit to her in the police cells. I have already referred to
the concession that Dr George has made in this regard – she
could
have exhibited these features because she had been charged with a
serious crime and faced a possible prison sentence.
The Appellant has accordingly failed
to establish that her history of severe psychiatric problems is an
exceptional circumstances
as referred to in Section 60(11)(a) of the
Act. She has similarly failed to establish that her mental state at
the time of the bail
application was so precarious as to constitute
an exceptional circumstance.
The third ground advanced on behalf of
the Appellant as constituting an exceptional circumstance was that
she needed appropriate psychiatric
care, medication and support on an
ongoing basis. In arguing this ground Advocate
Webster
relied primarily on the evidence of Dr George.
Dr George testified that the
Appellant’s detention whilst awaiting trial would increase the risk
of her committing suicide. He
was of the opinion that were she to be
sent home where she would have access to the support of her family,
the support of her psychiatrist
and access to appropriate psychiatric
facilities if needed she would be at less risk of suicide than if she
was kept in custody.
Advocate
Webster
argued further that the history of her care in the past demonstrated
that: she had had access to proper professional consultations;
she
received the appropriate medication and she was admitted to the
appropriate facilities where necessary. He also argued that
the
evidence of Dr George was that she had been supported and cared for
by her family.
The Magistrate dealt with this
argument in his judgment as follows:
“
Of
crucial importance is the fact that the accused whilst in the care of
her family and whilst receiving treatment had indeed tried
to commit
suicide on previous occasions, and if she would be released would
necessarily eliminate that risk of suicide. Now the
only evidence
before this Court with regards to this point is that her late
husband, the deceased, took responsibility for her care,
it seems.
This is what Dr George and Dr Fortuin referred to in evidence when
they talked about “family members”. Both these
doctors, and more
especially Dr George, say that they have spoken to the deceased who
had taken it upon himself to care for the accused
and no one else.
Apart from a general untested assertion there is no evidence before
this Court as to who would take responsibility
for the care of the
accused. There is no evidence that there is someone better trained
and it seems that you need a trained person
as far as I am concerned,
or a person who is adequately equipped to take care of the accused
than a person better trained or with
a similar training than a nurse
or any other person in a State institution like Correctional Services
who deals with situations like
this.”
The Magistrate in doing so correctly
and accurately evaluated the relevant evidence on this point.
Advocate
Webster
also argued that it was common cause on the evidence of all three
psychiatrists that the Appellant needs: access to appropriate
and
regular psychiatric care; to receive the correct medication which is
controlled and monitored on a daily basis; and a supportive
environment.
The difficulty with this submission is
that there was no evidence as to what would be “appropriate and
regular psychiatric care”
after she was detained. In
cross-examination of Dr George it was put to him that “inmates can
also have their own psychiatrist
seeing them at Pollsmoor as an
outpatient.” Dr George was unaware of this fact and testified that
he would have to consider whether
he would treat her at Pollsmoor
because he has “a busy psychiatric practice and to go to Pollsmoor
and consult with a patient if
you go through the admission procedures
travelling it can take two or three hours out of a day”.
There is also limited evidence as to
what medication the Appellant requires and how it should be
controlled and monitored on a daily
basis. The medication Dr George
prescribed when he visited the Appellant at the police cells is
detailed in the second paragraph
at page 2 of Dr George’s report
(Exhibit E at page 49). The only relevant evidence of Dr George is
that she requires “close
daily monitoring”. On enquiry as to how
close it should be, Dr George replied “someone needs to be aware
each day of what medication
she is having, what’s her mental status
at the time, whether she’s going to take it all in one shot or
whether she’s going
to take it properly.” On further enquiry, as
to whether each dose of the medication has to handed to her
effectively, Dr George
replied “no, not necessarily, she can get a
day’s medication.” Dr George also confirmed that while the
Appellant was held
at the police cells “the staff on duty give her
her day’s medication then she takes it further. The main amounts
are held by
the officer on duty and then she is given her daily
medication.”
The Appellant has accordingly also
failed to establish that her need for ongoing psychiatric care
constituted an exceptional circumstance.
The fourth ground advanced on behalf
of the Appellant as constituting an exceptional circumstance was the
inability of the Department
of Correctional Services to provide her
with the appropriate care for her severe mental problems.
Advocate
Webster
correctly submitted that the evidence relating to the medical
facilities within the female section at Pollsmoor Prison revealed a
dismal and disturbing picture. In fact the Magistrate accepted that:
“……
the
treatment and care for patients with mental illnesses will be less
than satisfactory and not nearly at the same level as the care
any
patient would get at any recognised mental institution.”
He however reasoned that:
“
People
with mental illnesses belong in an institution that cater for that
and not in a prison. A prison is primarily an institution
where
people are detained in order to protect the public. They however
have rights in terms of Section 35(e) and (f) of the Constitution
to
adequate medical care and access to a chosen medical practitioner.
The Constitution demands no more of the prison authorities.
If they
should fail in their duty to give this care any detainee will have
recourse to ensure that these rights are provided. Although
a Court
seized with a bail application can take cognisance of the conditions
in prison and has a duty to ensure that the liberty
of any individual
is not unduly restricted, it cannot sidestep or abdicate its
responsibility to order the detention of a person
because of
inadequate conditions in prison. No Court can do that and it is not
the responsibility of the Court. It would then mean
that people
suffering from mental illness like the accused can never be detained
even if they are a danger to society because of
inadequate conditions
in prison. This is totally unacceptable and the Court cannot accept
that in argument, even more so where a
case has been made out that
someone like accused number 1 is a danger to herself and who is prone
to suicide needs to be contained
to protect her from herself in order
to keep her alive so that she could stand trial.”
As Advocate
Riley
for the State argued the Supreme Court of Appeal has, to an extent,
endorsed the approach taken by the Magistrate.
S
v van Wyk
2005(1) SACR 41
(SCA) at 45g-j.
In cross-examination of Dr
Panieri-Peter it was put that the Appellant would be a suicide risk
if she was detained in prison. She
provided a motivated explanation
of why she disagreed with that proposition in the following terms.
“
If your motivation for sending her
home is to keep her alive, in other words to prevent her dying at her
own hand, then that is actually
the question. It is, can we try to
the best of whatever facility to prevent committing suicide, and I
would argue that a facility
even inadequate, has a higher likelihood
of keeping an individual safe – not comfortable, not happy, but
safe from suicide –
not at home, where they have access to any
mechanisms by which to kill themselves.”
She was then asked;
“
And without psychiatric care,
without appropriate medication.”
She replied;
“
Well
we are talking about with appropriate medication, but even even if
you are using as your test for keeping her alive then I have
to say
that sending her home is the high risk thing to do. If you are
talking about keeping her optimally well then that is not
the same.
But your argument is that she is going to die at her own hand –
more likely in a prison cell than at home – and I would
say that at
home her likelihood is especially in a fact that nothing predicts the
future like the past, she has already attempted
that under the
supervision of her family.”
The Appellant’s failure to establish
the first three exceptional circumstances referred to above also
limits the impact of the argument
advanced in respect of the fourth
exceptional circumstance to relied on. As argued by Advocate
Webster
the fourth ground is constituted by the Department’s inability to
provide the appropriate care for the appellant’s “severe
mental
problems.” If, as I have found, her mental problems after her
arrest were not severe she has also then failed to establish
that
exceptional ground relied on.
The fifth and final ground advanced on
behalf of the Appellant as constituting an exceptional circumstances
was that she needs to
look after her eight year old daughter.
It is understandable that the
Appellant’s daughter, after the murder of her father and the arrest
of the Appellant is, as explained
by the Appellant’s sister, Mrs F
Arendse;
“
She
is traumatised, she can’t sleep at night, she cries for her mother
at night and when she visits her mother when she comes back
then I
have trouble with her, the questions that she asks, when is her
mother coming home and things like that.”
However, in evidence in chief Mrs
Arendse was not lead on the role that the Appellant played in looking
after her daughter. In cross-examination
it was established that the
deceased had played a leading parental role in attending to the child
because the Appellant “was never
able to do that, she was sick all
the time.”
Further cross-examination also
established that the child’s primary careers were two domestic
assistants. Advocate
Riley
also submitted that the Appellant has an extended family. Her
parents are still alive and she has two other sisters. The child
is
close to her siblings from the deceased’s first marriage as well as
a paternal aunt. Furthermore the Appellant’s family is
financially
well-off and is able to look after the child.
Advocate
Webster
argued that Dr Panieri-Peters evidence was that it was in the child’s
interests to have her mother care for her. This argument
was
countered by Advocate
Riley
who emphasized that Dr Panieri-Peter’s evidence on this aspect had
been qualified in the following terms:
“
The
question about whether access to her child is relevant to her mental
state remains in question. Certainly someone that is of
such a high
risk and are likely to kill themselves, you can argue it is a very
stressful thing to impose on a child and that actually
to have a
child be part of that is certainly when we have people who are
admitted to a psychiatric hospital, not as part of any forensic
facility we actually limit access to family members because it is
exceptionally distressing for young children to see their parents
psychotic or mentally unwell. This is a seriously distressing thing
for any child.”
Advocate
Webster’s
argument also overlook that on 13 April 2006 the Appellant had
stabbed her husband in the neck. Dr Fortuin was referred to this
incident in cross-examination. He was asked if it was possible that
the Appellant could do so again. He was unable to answer because
he
had not assessed her for “homicidal intent”. He conceded that
there was a “likelihood” that it could happen again. He
subsequently testified that there was a possibility that the
Appellant might have another episode where she might stab or hurt
somebody.
The Magistrate dealt with this
argument as follows:
“
In
this case however the accused because of her mental condition is
barely able to look after herself. That is the evidence that
was
given here. You have to have somebody that has to look after her let
alone her child. According to the evidence which is presented
by the
defence is that her normal functioning deteriorated from 60% to 20%.
She could barely function as a person because of her
mental
condition. It is also part of her case that she is suicidal. This
in itself poses a risk of harm to a young child. That
was also the
evidence that was presented here by the State.”
In doing so he again correctly and
accurately evaluated the evidence adduced on behalf of the Appellant
on this point. The Appellant
has similarly failed to establish that
her need to look after her daughter constituted an exceptional
circumstance.
Advocate
Riley
argued that if the Appellant was released on bail there is a
likelihood she will endanger the safety of the public as provided for
in Section 60(4)(a) read with Section 60(5) of the Act. She relied
primarily on the occasion on 13 April 2006 when the Appellant
stabbed
the deceased. As the Magistrate did not deal with this ground of
opposition in his judgment there is merit in Advocate
Webster’s
counter argument that it can be inferred that he found no basis to
conclude that the Appellant’s release on bail would endanger
the
safety of the public.
The
second ground of opposition raised by the State as provided for in
Section 60(4)(b) read with Section 60(6) of the Act is that
there is
a likelihood that she would attempt to evade her trial if she was
granted bail.
Advocate
Riley
in her argument focused on Section 60(6)(f) which referred to the
nature and gravity of the charges on which the Appellant is to
be
tried; and section 60(6)(g) which refers to the strength of the
State’s case against the accused.
It has been held “Dit is gevestigde
reg om ook in gevalle waar Artikel 60(11)(a) van toepassing is, met
ander woorde afgesien van
die waarskynlikheid dat die beskuldigde sal
poog om sy verhoor te ontduik, die sterkte van die Staat se saak
relevantheid te geen
onder die rubriek van buitengewone
omstandighede.”
S v
Viljoen
2202(2) SACR 550
(SCA) at paragraph 11.
In this regard Advocate
Webster
has argued that the Appellant is implicated primarily by the evidence
of Fahiem Hendricks who is an alleged accomplice. He has already
provided conflicting versions under oath according to the
investigating officer. The submission in evidence that this witness
had
received a significant financial incentive namely R250 000 to
testify against the Appellant went unanswered, despite the State
specifically
taking time to investigating this aspect. The State’s
failure to address this aspect on resumption was telling. Advocate
Webster
further argued that the State case suggests no connection
between the Appellant and her co-accused in that they had made no
contact
with each other whatsoever and had never met each other
before the deceased was murdered.
The Magistrate however correctly found
that the evidence against the Appellant is not limited to the witness
Hendricks. The evidence
of the investigating officer was that in
November 2006 the Appellant asked a close friend to obtain Hendricks’
telephone number.
Her friend did so. The Appellant then contacted
Hendricks. He visited her at her residence. She asked him if he
knew of anyone
who could do a “hit” for which she would pay R100
000. He demurred. The Appellant thereafter repeatedly phoned him.
He visited
her again and said he had found someone. The Appellant
told him she did not want to know the individuals who would perform
the “hit”.
She also told him that the cameras around her home
would be off and she would push the buzzer to allow the hit men
access to the
residence.
The investigating officer, Captain
Dryden, testified that he had a detailed billing of cell phone
records of calls from: the Appellant
to Hendricks; and Hendricks’
to accused number 2; and accused number 2 to accused number 3. He
also had other statements which
supported Hendricks’ version.
There had been two previous
unsuccessful attempts by the Appellant to arrange the “hit”. On
14 December 2006 the deceased returned
from London. The Appellant
telephoned Hendricks from the airport to enquire if he could organise
a hijacking. Hendricks was unable
to do so. On the following day
the Appellant again telephoned Hendricks to enquire if the “hit”
could be done when the deceased
was to leave the Luxurama Theatre
that evening. Hendricks’ was again unable to do so.
The Appellant’s last cell phone call
to Hendricks was at 11.26 pm on the night of her husband’s murder.
Five to ten minutes later
the two “hit men” (accused 3 and 4)
entered the Appellant’s home. The billing record established that
accused number 3 was
in the vicinity of a Judge’s previous offices
when he practiced as an attorney in Athlone.
Accused 3 and 4 then entered the
Appellant’s home as she had arranged with Hendricks. Both these
accused have made confessions.
There had also been a pointing out at
the scene by accused number 3.
Accused number 3 had a firearm. They
finally entered the lounge where the deceased was. Accused 3 ordered
the deceased to put his
hands in the air. Accused 3 and 4 approached
and grabbed the deceased from both sides. The Appellant then
arrived. Thereafter
the deceased was bound – the Appellant
assisted.
Accused 3 then asked the Appellant
where the safe was. He and the Appellant went to the safe. She
handed him a bag of money. Accused
3 then asked the Appellant where
the jewellery and cell phones were so that it could appear that there
had been a robbery. The Appellant
took off her watch and gave it to
accused 3. She then led accused 3 into a bedroom where her son,
daughter-in-law and their baby
were sleeping. She walked ahead of
accused 3. She put on the light, walked up to her daughter-in-law and
with her finger on her
lip said do not panic. Accused 3 then took
cell phones, watches, a digital camera and cash.
Captain
Dryden took statements from the appellant’s son and daughter-in-law
which corroborated this part of accused 3’s version.
The Appellant and accused number 3
returned to where the deceased and accused 4 were. The Appellant
finally took accused 3’s firearm,
covered it in a cushion and shot
the deceased.
The deceased was buried the following
day, on 17 December 2006. On that day the Appellant wrote out a cash
cheque for R100 000.
On 18 December 2006 she asked a business
partner to cash that cheque. The Appellant told her partner – who
has also given a statement
to Captain Dryden – that if the police
enquired about that payment her partner should say that the Appellant
owed her that amount.
However the Appellant in error had made the
cheque out for R100. On 19 December a further cheque was written out
by the Appellant
for R100 000. It was cashed. The cash was
delivered to the Appellant.
Under questioning, Hendricks’ first
explanation for the number of cell phone calls between him and the
Appellant was that he had
borrowed money from her. His second
explanation has that he and the Appellant were having an affair. The
Appellant under questioning
in Hendricks’ presence confirmed that
they had had a little affair.
Hendricks thereafter explained that
the reason for the number of calls was a legal diamond deal between
himself and the Appellant.
Hendricks subsequently, in the company of
his attorney, told Captain Dryden that here was not such a deal.
In cross-examination of Captain Dryden
it was put that in 2006 the Appellant had done business with
Hendricks in connection with diamonds.
This was subsequently
clarified in the following terms. I quote a proposition put by Mr
Webster
to Captain Dryden in cross-examination;
“
Ek moet dit aan u stel dat die
telefoniese kontak wat plaasgevind het tussen beskuldigde 1 en Mnr
Hendricks was in verband met geld
wat geleen is in verband met
diamante waarmee hulle besigheid gedoen het.”
Captain Dryden’s answer was;
“
Nie heeltemal, dit is nie net oor
die diamante nie Edele, dit was oor die moord.”
The effect of this proposition is that
the Appellant’s telephone calls to Hendricks on 14 and 15 December
and at 11:26pm on 16
December were in relation to money lent and a
diamond business in which the Appellant and Hendricks were involved.
No explanation
has been provided as to why the Appellant telephoned
Hendricks at 11:26 pm on 16 December 2006, five to ten minutes before
her husband’s
murderers entered their residence. No explanation
has been provided as to why the Appellant’s son and daughter-in-law
have provided
statements explaining what the Appellant did on the
night her husband was murdered. No explanation has been provided as
to why on
the day after her husband’s murder the Appellant was so
concerned to cash a cheque for R100 000 – particularly on false
pretences.
The
Magistrate was thus fully justified in finding that the State’s
case as presented at the bail hearing “would need a lot of
explaining” from the Appellant.
In my judgment the Appellant
accordingly has “a case to meet” as it cannot be disputed that
the State has a reasonable strong
prima
facia
case. This has held
to be a “weighty factor”
S
v Branco
2002(1) SACR 531
(W) at 535 b-c.
When I raised these issues which
required explanation with Advocate
Webster
in argument, he submitted this evidence was superficial hearsay and
its reliability and accuracy had not yet been tested. However
as
held by the Constitutional Court a bail application “remains a
unique interlocutory proceedings where the rules of formal proof
can
be relaxed” (
S v Dlamini
supra at 78 d-e.) I stress that the issues which I have summarised as
requiring explanation were not challenged in cross-examination
of
Captain Dryden. Advocate
Webster’s
attempt in the course of oral argument to minimise the impact of
these features was accordingly unsuccessful.
Advocate
Webster
also argued that there might be an innocent reason for the telephone
contact with Hendricks. This argument is both unhelpful and
unpersuasive as the reason for the Appellant’s telephone contact
between the Appellant and Hendricks was as set out above put in
detail during the cross-examination of Captain Dryden.
Advocate
Webster
has submitted that it is significant that the Appellant had been
questioned as early as January 2007 in connection with the matter.

Had she wished to flee, so he argued, she had ample opportunity to do
so. It is telling, he argued, that she did not do so but
remained in
Cape Town where her family, her roots and her assets are based.
Advocate
Riley
has countered correctly, in my judgment, by submitting that the
argument that she could have absconded a long time ago also holds
no
water. It is clear that the Appellant kept tags on the progress in
investigation by constantly enquiring from witnesses what
was said to
the police at all relevant times.
Advocate
Riley
also argued that no satisfactory explanation has been provided as to
why the Appellant requested that the proceeds of R5.3million
on an
insurance policy on the life of the deceased should be paid into a
Namibian bank account. She submitted that the explanation
by
Advocate
Webster
from the bar that it was an interim measure since she wanted to
create a trust fund for her daughter is unconvincing – particularly
if the Appellant, and presumably her daughter, intend to stay in Cape
Town. The Magistrate was again justified in relying on this
feature.
The
third ground of opposition raised on behalf of the State is provided
for in Section 60(4)(c) read with Section 60(7) of the Act
in that
there is a likelihood that she would attempt to influence or
intimidate witnesses if she was released on bail.
Advocate
Riley
has submitted that the Appellant has shown that she is not adverse to
interfering with the investigation in this matter. She has
also
referred to the Magistrate’s reliance on the evidence that the
Appellant told her business partner on the morning of 17 December
2006 to tell the investigating officer an untruth about the cheque
she was asked to cash the day after the deceased was murdered.
Although I may have a different view
on this ground of opposition, I am not persuaded the Regional
Magistrate wrongly exercised his
discretion in upholding that ground.
The fourth and final ground of
opposition raised on behalf of the State is provided for in Section
60(4)(e) read with Section 60(8A)
of the Act. Again, although I may
have a different view on this ground of opposition, I am similarly
not persuaded that the Magistrate
wrongly exercised his discretion in
upholding that ground.
In conclusion I am not satisfied –
as required in terms of Section 65(4) of the Act – that the
Regional Magistrate’s decision
was wrong. The
APPEAL
IS ACCORDINGLY DISMISSED
.
WHITEHEAD, AJ
05:09:2007/ds