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[2024] ZAFSHC 169
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Phadi and Another v S (A1/2024) [2024] ZAFSHC 169 (3 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Bail
Appeal number: A1/2024
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the appeal between:
SOLOMON
WILLIAM
PHADI
1
st
Appellant
THAPELO
ABRAM
TSHABALALA
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
7 FEBRUARY 2024
DELIVERED
ON:
3 JUNE 2024
[1]
Mr Phadi ("the first appellant") and Mr Tshabalala ("the
second appellant")
are two of three accused who pleaded to a
charge of housebreaking with the intent to rob and robbery with
aggravating circumstances.
In this regard it is alleged by the State
that the three accused persons wrongfully and intentionally broke
into and entered the
house of the complainant with the intent to rob
and then wrongfully robbed the complainant from cell phones and cash
whilst pointing
him with firearms. All three accused pleaded not
guilty to the said charge.
[2]
After they pleaded not guilty the proceedings continued for purposes
of a bail hearing
on behalf of all three accused. All three accused
enjoyed legal representation during the bail hearing.
[3]
The court
a quo
denied bail in respect of all three accused.
[4]
This is an appeal by the first appellant and the second appellant
("the appellants")
against the aforesaid denial of bail by
the court
a quo
.
[5]
It was and still is common cause between the parties that the offense
with which the
appellants are charged falls within the provisions of
Schedule 6 of the Criminal Procedure Act, 51 of 1977 ("the
CPA").
The bail application was therefore heard in terms of the
provisions of section 60(11)(a) of the CPA and the same applies to
the
consideration of the bail appeal.
[6]
Section 60(11)(a) determines as follows:
"(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offense -
(a)
referred to 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;"
[7]
The onus was and is consequently on the appellants to show that
exceptional circumstances
exist which in the interests of justice
permit their release on bail.
[8]
The standard of proof required from the appellants to establish
"exceptional
circumstances" is on a balance of
probabilities. See
S v Rudolph
2010 (1) SACR 262
(SCA)
at para [9].
[9]
In terms of Section 60(4) of the CPA 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 the
likelihood that the accused, if he or she were released on bail, will
endanger the safety of
the public, any person against whom the
offence in question was allegedly committed, or any other particular
person or will commit
a Schedule 1 offence;
(b)
where there is the likelihood that the accused, if he or she were
released on bail, will
attempt to evade his or her bail; or
(c)
where there is the 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 the 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 system, including the bail system;
(e)
where in exceptional circumstances there is the likelihood that the
release of the accused
will disturb the public order or undermine the
public peace or security."
[10]
Sections 60(5) up to and including Section 60(9) of the CPA set out
the factors to be considered
in determining whether the grounds set
out in Section 60(4)(a) to 60(4)(e) have been established.
[11]
In terms of the appellants' Notice of Appeal the grounds of appeal
are,
inter alia
, the following:
1.
The court
a quo
erred in finding that the appellants failed to
prove exceptional circumstances.
2.
The court
a quo
failed to apply the principles enunciated in S
v Rudolph
2010 (1) SACR 262
(SCA).
3.
The court
a quo
erred in overlooking that none of the
likelihoods contained in Section 60(4)(a) to (e) of the CPA was
present.
4.
The court
a quo
erred in overlooking the fact that the first
appellant has no previous convictions and the previous conviction of
the second appellant
is not related to the present charge and
occurred 12 years ago. The second appellant is 60 years old.
5.
The court
a quo
overlooked and disregarded the fact that both
the appellants are breadwinners who maintain their families, which
include their
minor children.
6.
The court
a quo
erred in overemphasising the strength of the
State's case by relying on submissions made by the prosecutor and
which could not
be tested in any way.
7.
The court
a quo
overlooked the fact that the appellants are
not a flight risk.
8.
The court
a quo
erred in denying bail instead of having
considered granting bail with applicable conditions attached thereto.
9.
The court
a quo
failed to consider the factors set out in
Section 60(9)(a) to (g) of the CPA.
10.
The court
a quo
erred by not finding that the cumulative
effect of all the relevant factors constitute exceptional
circumstances.
[12]
Both the appellants placed their personal and other relevant
circumstances before court by means
of an affidavit. The affidavit of
the first appellant mentions,
inter alia
, the following:
1.
The first appellant is an adult male, aged 31 years old and he has
been resident
at Viljoenskroon since birth.
2.
He did not furnish an alternative address as same was not required of
him.
3.
He is a South African citizen and he does not have any relatives
outside the
Republic.
4.
He does not own any movable assets and he is self employed in
Viljoenskroon
as a builder for six years and earn R1 400.00 per
month.
5.
He is unmarried, however, he does have a child who is 10 years old.
He pays maintenance
for the child in the amount of R500.00 per month
in a good month. Continued incarceration will be financially
prejudicial to his
child as the trial might be disposed of only after
some time.
6.
He understands the charges levelled against him and he intends to
plead not guilty.
He knows that should he be found guilty the
sentence to be imposed might be severe, however, he maintains that he
is not a flight
risk.
7.
He harbours no resentment against the complainant and will not
interfere with
any of the state witnesses or the complainant.
8.
He did not supply false information to the police and he co
operated fully
with the investigating officer at all times.
9.
He does not have any previous convictions and no pending cases.
10.
His release on bail will not jeopardize the safety of the members of
the public and furthermore
the criminal justice system will not be
undermined and consequently he will also accept any bail conditions
that the court may
wish to impose.
11.
He therefore submits that there exist exceptional circumstances for
him to be released on
bail, especially given the absence of the
factors mentioned in Section 60(4)(a) to 60(4)(e) of the CPA, the
fact that the State
is not opposed to his release on bail and that he
has no previous convictions."
[13]
On questions raised by the court
a quo
, it was placed on
record that the first appellant performs piece jobs as a builder when
he is requested by people to assist with
the construction of
buildings. He is staying alone.
[14]
The affidavit of the second appellant mentions,
inter alia
,
the following:
1.
The second appellant is an adult male, 60 years old and he has been
staying in
Orkney for a period of 25 years. He stays with his wife.
2.
He did not furnish an alternative address since same was not
requested from him.
3.
He is a South African citizen and does not have relatives and/or
friends outside
the Republic of South Africa.
4.
He is the owner of immovable property, being the house where they
stay and he
also owns a movable asset in the form of a taxi vehicle.
5.
He is self-employed at Orkney as a taxi driver and owner and he has
been doing
so for 24 years. He earns a monthly income of R9 000.00.
6.
The second appellant is married and has three minor children aged 12,
8 and 6
respectively.
7.
He pays an amount of R1 000.00 per month towards the maintenance of
the children
and he also provides food and shelter for them. His
continued incarceration will therefore be financially prejudicial to
the minor
children as the matter might be disposed of only after some
time.
8.
He understands the nature of the charge against him and intends to
plead not
guilty.
9.
He knows that should he be found guilty the sentence to be imposed
might be severe.
However, he maintains that he is not a flight risk
and will not flee or evade his trial.
10.
He does not harbour any resentment against the complainant and will
not interfere with the
State witnesses and/or the complainant.
11.
He did not supply any false information to the police at any stage
and he co-operated fully
with the investigating officer at all times.
12.
The second appellant has two previous convictions, being assault in
1999 and receiving stolen
property in 2011. He has no pending
matters.
13.
His release will not jeopardize his safety and/or the sense of safety
and security amongst
members of the public. The criminal justice
system will not be undermined.
14.
The second appellant is willing to accept any conditions that the
court may attach to the
normal bail conditions and he can afford to
pay a bail amount of R500.00.
15.
The second appellant submits that taking into account the aforesaid,
there are exceptional
circumstances which in the interests of justice
permits that he be granted bail and he specifically referred to the
following:
1.
The fact that the State is not opposed to his release on bail.
2.
The absence of the factors listed in Section 60(4)(a) to 60(4)(e) of
the CPA.
3.
He is the breadwinner.
4.
He has pure social and economic ties in the RSA.
5.
His last previous conviction was 12 years ago.
[15]
In response to the aforesaid affidavits filed on behalf of the
appellants, the State presented
an affidavit deposed to by the
investigating officer. The investigating officer basically confirmed
the personal circumstances
of the appellants as stated by them. I
deem it necessary to quote the additional information as contained in
the said affidavit:
"1. Accused 1... he further said
he does not have a passport, as such he is not a flight risk. Accused
person is a first offender.
He does not have any previous
convictions. However, it is established that there is a likelihood
that the accused may pose a threat
to the safety of the public as the
community members, on the day of the incident, were surrounding his
place when his arrest was
effected. Accused is directly linked with
the crime committed as he attacked the complainant, being a
businessman, in his neighbourhood
without even covering his face,
knowing that he is precisely known by the victim.
2.
Accused 2 ... he does not have a passport, as such he is not a flight
risk. Accused
has previous convictions, though they are not similar
to the current offences. Accused is directly linked with the crime
committed
as his vehicle was the vehicle used during the commission
of the offence and also used as a getaway car. Further, the victim's
cell phone was found in the possession of accused 2 during his
arrest.
3.
Accused 3 ... he was arrested near the scene and it is alleged that
he is the
one who pointed a firearm to the victim. As such he was the
most aggressive person towards the victim.
4.
All three accused persons are linked with the crime. It is in the
interest of
justice to refuse bail. They all know the witnesses and
will intimidate them. They might also jeopardize the objectives of
the
proper functioning of the criminal justice system._ This is a
pre-meditated crime as all the accused and their associates planned
to attack and rob the shop which is situated near accused 1's place,
who even accommodated these people who are from out of town
and let
them wait there for a specific time to hit the business place. It is
a Schedule 6 offence as the victim was pointed with
firearms and
threatened to be killed. Even poured with paraffin in order to
conceal the evidence on the body after he could have
been shot. It
was due to the community of the Rammulotsi that assisted to save the
life of the victim by calling the police on
time. That is all I can
state.
[16]
The aforesaid affidavit of the investigating officer was handed in
and received into evidence
as exhibit "D"."
[17]
The bail application then took an astonishing direction. The
prosecutor merely made a comment
and stated "circumstances of
the offence are as follows" and then gave a detailed description
of how and where the robbery
allegedly occurred, what allegedly
happened immediately after the robbery and the allege manner in which
the three accused were
arrested. Although the prosecutor narrated the
greater part of the aforesaid alleged facts and circumstances in the
third person,
he also used words like "I" and "we".
My distinct impression is that the prosecutor was reading from the
witness
statement of the complainant and, possibly, also form the
arrest statement deposed to by one or other of the police officials.
[18]
The aforesaid very detailed narration was not part of the affidavit
deposed to by the investigating
officer and it was not handed in as
an exhibit. In fact, it is even unclear whether the document(s) from
which the prosecutor read
was an affidavit or not.
[19]
It is settled law that a bail applicant can motivate his application
by means of
ex parte
statements from the bar and/or by means
of sworn statements and/or by means of
viva voce
evidence. See
S v Hartslief
2002 (1) SACR 7
(T).
[20]
However, such
ex parte
statements may not be used to put
"evidence" which is in dispute, before the Court. A legal
representative's submission
of detailed factual information in order
to supplement an inadequate written statement submitted on behalf of
the client, was found
to be unacceptable in
Deyi v S
(A16/13) [2013] ZAGPPHC 75 (6 March 2013) at paras [13] to [14].
There is no reason why the same principle would not
mutatis
mutandis
apply to the State.
[21]
In
S v Mwaka
2015 (2) SACR 306
(WCC) the following was
stated at paragraph [12] thereof:
"It is now well established in
our law that a bail applicant may not be deprived of the right to
testify in the application
and an affidavit is admissible and in
certain circumstances more convenient. A court hearing a bail
application is therefore, in
terms of S 60(2)(b), (2)(c) and (2A) of
the CPA, expressly given the power to
receive information or data
which is common cause
and,
regarding matters which are in
dispute, to receive evidence.
" (My emphasis)
[22]
The aforesaid case law complies with the provisions of Section 60(2)
of the CPA which provides
as follows:
"60(2) In bail proceedings
the court -
(a)
....
(b)
may, in respect of
matters that are
not
in
dispute
between the accused and the prosecutor acquire in an
informal manner the information that is needed for its decision or
order regarding
bail;
(c)
may, in respect of
matters that
are in dispute
between the accused and the prosecutor require of the prosecutor or
the accused, as the case may be,
that
evidence
be adduced
;
(d)
... " (My emphasis)
[23]
In
S v Boeck
2000 (2) SACR 185
(TPD) the Court declined
to admit a statement on behalf of the State which was unsworn and did
consequently not constitute an affidavit.
[24]
The constitutional right to a fair trial is not confined to trial
proceedings, but includes pre-trial
proceedings such as a bail
application. Bail can only be decided after a proper and judicially
conducted enquiry.
[25]
In the unreported judgment of
Majali v S
GSJ Case No.
41210/2010, (19 July 2011) at paragraph [33] the following was said:
"A bail enquiry is a judicial
process that has to be conducted impartially and judicially and in
accordance with relevant statutory
and constitutional prescripts."
[26]
In
S v Miguel and Others
2016 (3) NR 732
(HC) the Court
held at paragraph [27] that it was impermissible for the bail_ court
to have had regard to the facts falling outside
the scope of the
evidence adduced. The Court found that it constituted an
irregularity.
[27]
Section 65(4) determines the following with regard to a bail appeal
to a Superior Court:
"65(4) 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, in which event the Court or Judge give the decision which
in its or his
opinion the lower court should have given."
[28]
Where the court
a quo
misdirected itself materially on the
facts or legal principles, the court of appeal may consider the issue
of bail afresh. See
S v Mpulampula
2007 (2) SACR 133
(E) at 136 E.
[29]
In the present matter the court
a quo
, in my view, misdirected
itself materially by having allowed the prosecutor to have put the
alleged facts and circumstances surrounding
the offence before court
in the manner it did. From a reading of the judgment of the court
a
quo
, as well as the "appeal reasons" which the court
a
quo
provided later, it is evident that not only did the court
a
quo
refer to and relied heavily on the facts which were put
before court in an improper manner, but also made a number of
inferences
based on those irregular alleged facts. The first such
inference is the State's alleged strong case against the appellants.
There
are a number of occasions in the judgment where the court
a
quo
, based on the information which was improperly placed before
it, made its inference that the State has a very strong case against
the appellants. In fact, the court went so far in its judgment as
almost repeating the totality of what was placed before it regarding
the alleged facts and circumstances surrounding the offence.
[30]
In addition, the court made the inference that the appellants would
intimidate the witnesses
and that the community should be protected
against the appellants, also based on the information which was
irregularly placed before
it. In my view the objectivity of the court
a quo
was clearly tainted by the information which was put
before it irregularly. It clearly had a huge impact on the court
a
quo's
decision to deny the appellants bail.
[31]
I am therefore entitled to consider the issue of bail afresh in order
to determine whether the
court
a quo
was in fact wrong when it
denied bail.
[32]
It is necessary to consider what constitute "exceptional
circumstances". As indicated
in the appellants' grounds of
appeal, they aver that the court
a quo
failed to apply the
principles enunciated in
S v Rudolph
2010 (1) SACR 262
(SCA) at paragraph [9]:
"The section places an onus on
the appellant to produce proof, on a balance of probability, that
'exceptional circumstances'
exist which in the interests of justice
permit his release. It '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 exist'. Exceptional circumstances do not mean that 'they
must
be circumstances above and beyond, and generally different from
those enumerated' in ss 60(4) to (9). In fact, ordinary circumstances
present to an exceptional degree, may lead to a finding that the
release on bail is justified."
[33]
The appellants also relied in their grounds of appeal on the judgment
in
S v Bruintjies
2003 (2) SACR 575
(SCA) at 577 F. The
relevant quote should, however, be read in context where the
circumstances were that the appellant were granted
leave to appeal on
the merits and submitted that the existence of reasonable prospects
of success in the appeal constituted an
exceptional circumstance
which warranted bail. The Court stated as follows at 577 D and
further:
"If that were so, however, the
great majority of persons facing charges involving Schedule 6
offences would have to be released
on bail pending their trial
without regard to other important considerations, such as, for
example, the public safety. The mere
fact that the trial court
considers that the appellant has a reasonable prospect of succeeding
on appeal thus not of itself amount
to an exceptional circumstance.
What is required is that the court consider all relevant factors
and determine whether individually and cumulatively they warrant
a
finding that circumstances of an exceptional nature exist which
justifies his or her release. What is exceptional cannot be defined
in isolation from the relevant facts, save to say that the
Legislature clearly had in mind circumstances which removed the
applicant
from the ordinary run and which serve at least to mitigate
the serious limitation of freedom which the Legislature has attached
to the commission of a Schedule 6 offence.
The prospect of
success may be such a circumstance, particularly if the conviction is
demonstrably suspect. It may, however, be
insufficient to surmount
the threshold if, for example, there are other facts which persuade
the Court that society will probably
be endangered by the appellant's
release or there is clear evidence of an intention to avoid the grasp
of law. ... If, upon an
overall assessment, the court is satisfied
that circumstances sufficiently out of the ordinary to be deemed
exceptional have been
established by the appellant and which,
consistent with the interest of justice, warrant his release, the
appellant must be granted
bail." (My emphasis)
[34]
The investigating officer stated in his affidavit that the appellants
are directly linked to
the offence and stated the grounds for his
statement. I'm accordingly willing to accept that it seems that the
State has a
prima·facie
case against the appellants
although identity will probably be in dispute, which will necessitate
the applying of the relevant
cautionary rule.
[35]
The investigating officer further stated as follows:
"However, it is established that
there is a likelihood that the accused may
pose a threat
to
the safety of the public as the community members, on the day of the
incident, were surrounding his place when his arrest was
effected. It
is in the interest of justice to refuse bail. They all know the
witnesses and
will
intimidate them. They
might
also
jeopardize the objectives of the proper functioning of the criminal
justice system." (My emphasis)
[36]
The second appellant lives in Orkney. The investigating officer
stated no facts in support of
his allegation that the second
appellant knows the alleged witnesses who are from Viljoenskroon.
[37]
The court
a quo
apparently just accepted the mere ipse dixit
of the investigating officer without considering whether there is
evidence to sustain
the allegations. An investigating officer's
opinion which merely amounts to a statement without supporting
evidence lacks probative
value and should not be relied upon. In
Sambo v S
(CA01/2020)
[2020] ZANCHC 27
(17 June 2020)
at paragraph [12] the court of appeal stated as follows:
"It seems that the court placed
much reliance on the investigating officer's whims for reaching the
conclusion that the appellant
should be denied bail as he was
considered to be a flight risk who may try to evade trial. Without
evidence to support this finding,
the court
a quo
committed a
misdirection in finding that the appellant is likely to try to evade
trial. There simply exists no persuasive evidence
to support such
finding. The statement of the investigating officer is just what it
is, a statement without supporting evidence.
It should not have been
relied upon."
[38]
Mere restatements or parroting of the relevant sub-sections of
section 60 of the CPA does not
carry any weight without factual
details supporting those allegations. See
S v Mathebula
2010 (1) SACR 55
(SCA) at para [15].
[39]
The court a quo also failed to consider the possibility of suitable
bail conditions in order
to prevent the aforesaid dreaded events from
happening. In this regard the court stated as follows in
S v
Branco
2002 (1) SACR (W) at 537 A- B:
"Finally, a court should always
consider suitable conditions as an alternative to the denial of bail.
Conversely, where no
consideration is given to the application of
suitable conditions as an alternative to incarceration, this may lead
to a failure
to exercise a proper discretion. The appellant has
stated under oath that he is prepared to report to the police
station. This
was not challenged."
[40]
In this instance the appellants stated in their respective affidavits
that they will abide by
any bail condition which the court may
impose, but yet the court
a quo
completely failed to consider
the possibility and appropriateness thereof.
[41]
Another important factor is that the refusal of bail in order to
protect society is only justified
in extreme circumstances. See
S
v Du Plessis
1993 (2) SACR379 (T) at 384 J - 385 B.
[42]
The investigating officer did not dispute the personal circumstances
of the appellants, nor the
fact that they are not a flight risk. In
fact, it appears from the record that this bail application was
apparently initially unopposed,
where after it became opposed at a
later stage.
[43]
I have given much consideration to the matter at hand. I take due
cognisance of the following
dicta
and many others alike,
stated in
S v Miguel
,
supra
, at paragraph [51]:
"[51] Factors such as to whether
or not it would be in the interest of justice to grant the appellants
bail, or whether the
State has a strong or weak case against the
appellants must not be viewed in isolation. As with the evaluation of
all evidence,
the court must follow a holistic approach when
assessing and weighing the evidence for and against the applicants in
a bail application."
[44]
The appellants bear the onus to establish exceptional circumstances.
Having said that, the State
has a duty to assist the court by putting
as much as possible relevant information before the court in order to
make a well-informed
decision. That did not happen in this instance.
[45]
When I take all the relevant facts and circumstances into
consideration, I am satisfied that
the appellants discharged their
onus on a balance of probabilities. The court a quo was wrong in not
having granted bail to the
appellants.
[46]
With regard to the amount of bail, the second appellant indicated in
his affidavit that he will
be able to afford R500.00 bail. The first
appellant did indicate an amount in his affidavit, but it is
illegible. However, I take
into consideration that he was only
employed on a piece job basis and would probably not be able to
afford R500.00 bail.
Conclusion:
[47]
In the circumstances and having considered all the relevant facts and
principles, I intend granting
bail to the appellants on appropriate
conditions.
Order:
[48]
The following orders are made:
1.
The first appellant and the second appellant's appeal against the
dismissal of
their bail, is upheld.
2.
The order of the court
a quo
is set aside and substituted with
the following:
3.
The first appellant (Mr SW Phadi):
3.1
The first appellant is released on R300.00 bail.
3.2
The first appellant shall report to the Viljoenskroon Police Station
every Wednesday between
6h00 and 20h00.
3.3
The first appellant shall attend his trial and all postponements
thereof and remain in attendance
until excused and finally until a
verdict is given in respect thereof.
3.4
The first appellant shall not make contact with, communicate to or
visit the premises/shop
of the complainant in this case in any manner
whatsoever until finalisation of the case.
3.5
The first appellant shall not make contact with, communicate to or
visit the premises of
any of the State witnesses in this case until
finalisation of the case.
3.6
The first appellant shall not interfere with or intimidate the
complainant or any of the
State witnesses in this case until
finalisation of the case.
3.7
Should the first appellant's address where he lives change, he shall
immediately inform
the investigating officer accordingly within 24
hours of such change.
4.
The second appellant (Mr TA Tshabalala):
4.1
The second appellant is released on R500.00 bail.
4.2
The second appellant shall report to the Orkney Police Station every
Wednesday between 6h00
and 20h00.
4.3
The second appellant shall attend his trial and all postponements
thereof and remain in
attendance until excused and finally until a
verdict is given in respect thereof.
4.4
The second appellant shall not make contact with, communicate to or
visit the premises/shop
of the complainant in this case in any manner
whatsoever until finalisation of the case.
4.5
The second appellant shall not make contact with, communicate to or
visit the premises of
any of the State witnesses in this case until
finalisation of the case.
4.6
The second appellant shall not interfere with or intimidate the
complainant or any of the
State witnesses in this case until
finalisation of the case.
3.7 Should the second appellant's
address where he lives change, he shall immediately inform the
investigating officer accordingly
within 24 hours of such change.
C.
VAN ZYL, J
On behalf of the Appellants:
Ms V Abrahams
Instructed by:
Legal Aid
BLOEMFONTEIN
On behalf of the State:
Adv S Giorgi
Instructed by:
Department of Public
Prosecutions
BLOEMFONTEIN