S v Whitehead and Others (CA & R 2/06) [2006] ZANCHC 98 (7 July 2006)

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[2006] ZANCHC 98
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S v Whitehead and Others (CA & R 2/06) [2006] ZANCHC 98 (7 July 2006)

IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape Division)
CASE NUMBER:
CA & R 2/06
DATE
HEARD:
2006-07-05
DATE
DELIVERED:
2006-07-07
In the application of:
ALEXANDER GEORGE WHITEHEAD 1
st
Applicant
AREND
CHRISTIAAN DE WAAL 2
nd
Applicant
GERHARDUS
JOHANNES TALJAARD 3
rd
Applicant
LOUIS
GEORGE RADEMEYER 4
th
Applicant
WILLEM
JACOBUS PETRUS JACOBS 5
th
Applicant
HANS
JACOB WESSELS 6
th
Applicant
RYNO
ADRIAAN ROSSOUW 7
th
Applicant
RYAN
ALBUTT 8
th
Applicant
and
THE STATE Respondent
Coram:
Kgomo JP et Majiedt
J
JUDGEMENT
on
APPLICATION
FOR BAIL PENDING APPEAL
MAJIEDT J
1. The eight applicants have applied for bail pending
the finalisation of their application for leave to appeal against the
judgement
of the regional magistrate which has been upheld on appeal
by us on 2 June 2006. Their application is for the extension of
the bail granted to them by the regional magistrate pending their
appeal to this Court, alternatively for this Court to fix an amount
of bail on such conditions as it may deem fit.
2. We heard this matter during the July recess. We find
ourselves in an extremely invidious position with regard to the bail
application.
Since this has a direct bearing on the merits of the
application, it is important that I set out in some detail the
background and
surrounding circumstances which have led to this
application being heard during the July recess.
3. The eight applicants were convicted in the regional
court of public violence and culpable homicide and in addition, the
eighth
applicant was also convicted on one count of assault with the
intent to do grievous bodily harm. They were sentenced to terms of
imprisonment which vary from eight years to ten years on the
aforementioned convictions.
4. As alluded to above, we dismissed their appeal
against their convictions and sentences on 2 June 2006. An
application by the 1
st
,
4
th
and 8
th
applicants to remit the matter to the regional magistrate for the
adducing of further evidence on the merits, alternatively on
sentence,
was also dismissed.
5. An application for leave to appeal to the Supreme
Court of Appeal against our judgement confirming their convictions
and sentences
was lodged on behalf of the 2
nd
,
3
rd
, 5
th
,
6
th
and 7
th
applicants with the Registrar of this Court on 8 June 2006. A
similar application was lodged on behalf of the other applicants on
9
June 2006, although the papers in that application were not in our
files and were handed up to us from the Bar during the course
of the
hearing of the bail application.
6. My Brother, the learned Judge President, became aware
of the aforementioned applications for leave to appeal, and, mindful
of the
possibility that he may only be available to hear such an
application during November of this year, the attorneys for all the
applicants
before us were advised that we would be available to hear
the application for leave to appeal before the end of the Court term,
namely
30 June 2006. In addition, the attorneys were advised
that we would be available at 9 am during any day of the week
from
26 – 30 June 2006 for such an application. For reasons
unknown to us and presumably by virtue of the unavailability of
Counsel,
the matter could not be heard during the aforementioned
week, and has in fact now been set down for hearing on 16 November
2006,
which is the first available date in the schedule of the Judge
President at this juncture.
7. Against the aforementioned background, the
applicants’ attorneys then raised the prospect of their bail being
extended or bail
being fixed afresh by this Court pending the hearing
of the application for leave to appeal on 16 November 2006. The
attorneys were
advised that a formal application in this regard would
have to be brought and the same dates aforementioned were suggested
for the
hearing of a bail application, i.e. 26 – 30 June 2006.
When it became apparent that a formal bail application could not be
heard
during that week (again presumably due to the unavailability of
counsel) the Judge President and I intimated that we would be
available
on either 3 or 5 July 2006 to hear the bail application.
In the end, the matter was heard on 5 July 2006.
8. The ultimate effect of the aforementioned sequence of
events is that we are seized with an application for bail pending
appeal
in circumstances where the application for leave to appeal
itself is only to be heard on 16 November 2006. This is a most
unsatisfactory
state of affairs, since the applicants’ prospects of
success of their proposed appeal to the Supreme Court of Appeal is of
material
importance in considering their application for bail. Both
Counsel who appeared for the applicants, namely Mr. Reinders for the
1
st
, 4
th
and 8
th
applicants
and Mr. Nel for the 2
nd
,
3
rd
, 5
th
,
6
th
and 7
th
applicants, conceded that this is a most unsatisfactory situation.
Mr. Cloete for the State has made a very valid point in the course
of
his address before us, namely that all the parties are before the
Court, the applications for bail, supported by affidavits of
all the
applicants, have been duly filed and are before the Court and all the
parties are legally represented at the hearing. The
question
therefore arises why the application for leave to appeal itself could
not be argued simultaneously. The answer to this
is apparently that
the 1
st
, 4
th
and 8
th
applicants
wish to engage the services of senior counsel to argue the
application for leave to appeal (I must point out that they
were also
represented by senior counsel and assisted by Mr. Reinders during the
arguing of their appeal before us).
9. The applicants have all attested to supporting
affidavits in which they set out their personal circumstances with
regard to abode,
employment/business interests, family ties and their
commitment to adhere to any bail conditions which may be imposed in
addition
to the requirement that they report to the authorities
should their further appeal be unsuccessful. I have no hesitation
in accepting
that the applicants all have fixed abodes, in all
instances have either established business interests or fixed
employment and have
strong family ties which would greatly diminish
the flight risk in all their cases. Mr. Cloete for the State has,
understandably
so, not opposed the granting of bail. He has,
however, during the course of argument before us, pointed out that
the State intends
to oppose the applicants’ application for leave
to appeal when it is eventually heard on 16 November 2006. His
attitude is that
there are absolutely no prospects of success on
appeal for the applicants on this matter.
10. In accepting that the applicants do not present a
flight risk at all and, that they generally speaking meet all the
standard requirements
with regard to bail, the material and
determining question in this matter in my view is the fact of the
applicants’ prospects of
success on appeal. It is to this matter
that I now turn.
11. The applicants were convicted of the offences
mentioned herein above on the basis of direct eye witness evidence
which placed
them on the scene of the incident and ascribe certain
acts to them on the strength of which they were convicted of the
offences aforementioned.
The magistrate has furnished a detailed
judgement setting out reasons for the convictions of all the
applicants. In our judgement,
written by my Brother, the Judge
President, and with which I have concurred, we have dealt fully with
the arguments presented by
the applicants and have dismissed their
appeals and also, where applicable, their applications for leave to
lead further evidence.
Given the invidious position in which we find
ourselves and to which I have made reference, I can do no more than
to say that for
the reasons set forth in our judgement on appeal, we
take the view that the applicants’ applications for leave to appeal
are devoid
of any merit and are in fact manifestly doomed to failure.
The insurmountable and fundamental obstacle which all the applicants
face with regard to their appeal against conviction, is that at the
trial they all closed their cases without adducing any evidence
at
all in the face of strong
prima facie
evidence
presented by the State. It is so that in some instances the
prima
facie
case presented by the State against
some individual applicants is stronger than that presented against
other applicants, but the fact
of the matter is that with regard to
all the applicants the State had made out a strong
prima
facie
case at the trial and the applicants
had not presented any evidence to controvert that of the State. In
the premises, it seems to
me that with regard to the appeals of the
2
nd
, 3
rd
,
5
th
, 6
th
and 7
th
applicants, they face a virtually impossible task to persuade
another court that the regional magistrate had erred in convicting
them. With regard to the 1
st
,
4
th
and 8
th
applicants, their application for leave to lead further evidence on
the merits (i.e. their own as well as other defence evidence)
was
fundamentally flawed in that it did not meet the requirements as laid
down in a number of leading authorities to which we have
made
reference in our judgement on appeal.
11. While there is some divergence of opinion in our
courts as to what the test to be applied at this juncture should be,
I am prepared
to apply in favour of the applicants herein the test
which is most advantageous to them, namely whether their appeal can
be said
to be at least arguable. In some cases the mere absence of
reasonable prospects of success have been said to be sufficient to
justify
the refusal of bail; see in this regard
inter
alia:
S v Beer 1986(2) SA 307 (SE);
S v Williams 1981(1) SA 1170 (ZA).
In
other cases, however, the standard was set somewhat lower to the
effect that an appeal must be reasonably arguable and not manifestly
doomed to failure. See in this regard
inter
alia
:
S v Anderson 1990(1) SACR 525 (C) at 527 e-f;
S
v Naidoo 1986(2) SACR 250 (W);
S
v Hudson 1996(1) SACR 431 at 434 b.
12. In
S v Mabapa 2003(2) SACR
579 (T) at 587 a-e,
Van Rooyen AJ stated
that:
“Once there is no concern about whether the applicant will abscond
and where the criteria in s 60 of the Criminal Procedure Act
have
been met insofar as release on bail is concerned, there is no reason
not to apply a lesser standard on the question of prospects
of
success. In other words, if the appeal is reasonably arguable and not
manifestly doomed to failure, bail should be allowed. If
the grounds
are frivolous, it may be deduced that the appellant is simply seeking
to delay imprisonment and the application should
be denied. The test
applied by Joffe J in S v Naidoo (supra) would seem to be
constitutionally justifiable. It is not that far removed
from the
lesser standard applied by Flemming DJP. In the end the
constitutional question remains: is it in the interests of justice
that the convicted applicant, who has a constitutional right of
appeal, should be released on bail in spite of the fact that the
presumption of innocence is to a substantial extent spent? On the
other hand, the right of appeal is intact and the question arises
whether requiring too high a standard to be met for bail is not in
effect countering unreasonably the right to appeal. Is a right
to
appeal fully viable if an accused must wait in prison for many months
for his or her appeal to be heard? If the general standard
is lowered
to that of Flemming DJP or Joffe J, a person would at least be more
readily entitled to bail, where there are no circumstances
which
otherwise make bail unacceptable in terms of s 60 of the Criminal
Procedure Act.”
13. In the present matter the sentences imposed on the
applicants vary from an eight to ten year term of imprisonment. This
is consequently
a case where, given our view that the appeal against
conviction is manifestly doomed to failure, even if an appeal against
sentence
should succeed, it cannot be conceived at all that sentence
other than a term of direct imprisonment would be imposed. In
S
v Makaula 1993(1) SACR 57 (Tk)
Davies AJ
remarked as follows at 61 e:
“I would suggest that in general, where an accused has been
sentenced to a sentence of less than a year's imprisonment, bail
should
normally be granted pending an appeal.”
14. While it is so that an accused person has a
constitutional right to his/her freedom to be admitted to bail
pending appeal where
there are reasonable prospects of success and
such accused person otherwise meets the requirements as set forth in
section 60
of the
Criminal Procedure Act, 51 of 1977
, the obvious
corollary is that where there are no prospects of success at all on
appeal, the interests of justice demand that such
an accused person
should commence serving his/her sentence.
15. In the premises I am of the view that, for the
reasons set forth in our judgement on appeal, the applicants’
application for
leave to appeal is manifestly doomed to failure and
they have not made out a case to be admitted to bail pending their
application
for leave to appeal.
16. I would consequently issue the following order:
16.1 The applicants’ application for the bail
granted to them by the regional magistrate pending appeal to be
extended pending their
application for leave to appeal to the Supreme
Court of Appeal, alternatively for bail to be fixed by this Court is
dismissed.
16.2 The applicants are ordered to report to the
appropriate authorities within 7 (seven) days of delivery of this
judgement to commence
serving their sentences.
___________
SA MAJIEDT
JUDGE
I concur and it is so ordered.
___________
FD KGOMO
JUDGE
PRESIDENT
For applicants 1, 4 and 8: Adv SJ Reinders
For
applicants 2, 3, 5, 6 and 7: Adv J Nel
For
the State: Adv JJ Cloete