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2024
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[2024] ZANCHC 43
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Van Zyl and Others v S (CA & R 7/2024) [2024] ZANCHC 43 (3 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
no: CA & R 7/2024
Reportable
YES /
NO
Circulate
to Judges YES /
NO
Circulate
to Magistrates YES /
NO
In the matter between:
BRADLEY
VAN
ZYL
FIRST APPELLANT
MELVIN
DE BRUIN
SECOND APPELLANT
JACOBUS
VAN WYK
THIRD APPELLANT
And
THE
STATE
Neutral
citation:
Van
Zyl and Others v The State
(Case no CA
& R 7/2024) (03 May 2024)
Date of hearing: 10 April
2024
Date of judgment: 03 May
2024
JUDGMENT: BAIL APPEAL
PHATSHOANE AJP
[1]
The first to third appellants, Messrs Bradley Van Zyl, Melvin De
Bruin and Jacobus
Van Wyk, all in their thirties, are alleged to have
stolen 23 boxes of Solo Supreme deodorants worth approximately R100
000 out
of a stationary Scania Truck near the N12 National Road,
Victoria-West, on 23 November 2023. W/O Gerber and Sgt Lottering
arrested
them on the same date without warrants and have been in
custody since their arrest. They applied to be admitted to bail on 01
December
2023 pending their trial which Magistrate Coetzee, sitting
at the District Court of Victoria West, Northern Cape, refused on 05
December 2023. It is against that refusal that they are before this
Court on appeal.
[2]
It is common cause that the offence the appellants allegedly
committed falls within
the purview of Schedule 5 of the Criminal
Procedure Act 51 of 1977 (the CPA). It is set out as follows:
“
An
offence referred to in Schedule 1 [which includes theft, whether
under the common law or a statutory provision] –
(a)
and
the accused has previously been convicted of an offence referred to
in Schedule 1; or
(b)
which
was allegedly committed whilst he or she was released on bail in
respect of an offence referred to in Schedule 1.”
[3]
The first appellant, Mr Van Zyl, has no previous conviction but has a
pending case
of theft or possession of a stolen vehicle and was on
bail on 23 November 2023, when the present offence which resulted in
this
bail proceedings, was allegedly committed. The Second appellant,
Mr De Bruin, has eight previous convictions for offences which
involve an element of dishonesty, including housebreaking and several
other offences such as theft out of a motor vehicle
and
shoplifting. His last previous conviction for theft was in 2018 where
he was sentenced to 12 months’ imprisonment wholly
suspended on
certain conditions. He states that since then he walked a clear path.
The third appellant, Mr Van Wyk, has no previous
convictions.
However, like the first appellant, he had a pending case for theft of
cigarettes valued at approximately R100 000
and was on bail at the
time of the alleged commission of the present offence of which one of
the conditions attached was that he
should refrain from committing
further criminal offences.
[4]
Section 60(1)
(a)
of the
Criminal Procedure Act 51 of 1977
provides that a
n
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.
[1]
Section 60(11)
(b)
imposes upon an accused the onus to adduce evidence which satisfies
the court that the interests of justice permit his or her release.
It
provides that where an accused is charged with an offence referred to
in Schedule 5, as here, 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
the interests of justice permit his or her release.
[5]
In terms of
Section 60(
0
00000">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 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 trial; 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 jeopardise the objectives
or the proper functioning of
the criminal justice system, including the bail system; or
(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.”
[6]
In considering whether the ground set out in
s 60(4)
(d)
above has been established the
court
may, where applicable, take into account, inter alia,
(a)
the
fact that the accused, knowing it to be false, supplied false
information at the time of his or her arrest or during the
bail
proceedings;
(b)
whether
the accused is in custody on another charge or whether the accused is
on parole;
(c)
any
previous failure on the part of the accused to comply with bail
conditions or any indication that he or she
will not comply with any
bail condition.
[2]
.
[7]
In resisting bail the State called Capt Valerie Booysen, the
investigating Officer.
The complainant informed the police that he
had parked his work’s truck for a comfort break some 40 km
outside Victoria West
on 23 November 2023. He was about to drive off
when he noticed a person running from the truck’s trailer. He
alighted and
saw a second individual jumping out of the trailer and
running into the bush. He tried to pursue the two men but they evaded
him.
Upon inspection he noticed that the trailer’s tarp was
torn and that some deodorant boxes were missing. He walked some
distance
into the veld and saw where the boxes had been stashed. He
summoned the police and pointed to them the direction the men took.
The police, in an unmarked vehicle with emergency lights on, gave
chase.
[8]
Significantly, the fleeing two men were not carrying any backpacks. A
silver VW Vehicle
stopped and the duo jumped into it. The police
pursued the VW Vehicle on the N1 road for some 30 km. Eventually the
VW stopped
near Three Sisters where the complainant pointed out the
first and second appellants to the police. The third appellant’s
vehicle was searched. A backpack containing the second appellant’s
clothing was found inside. The appellants were apprehended.
The I/O
further testified that upon their arrest the appellants informed the
police that the first and second appellant were unemployed
while the
third appellant was employed. She intimated that what they had set
out in their affidavits, concerning their employment
status, differed
from what they had told the police.
[9]
The appellants did not adduce
viva voce
evidence but handed in
affidavits in support of their respective applications for bail
including a petition signed by 41 members
of the community of
Beaufort-West seeking their release on bail. Their affidavits
contained almost identical averments to the effect
that they never
stole from anyone. They intend to plead not guilty and deny the
allegations levelled against them. Their defence
is that the first
and second appellants left Beaufort-West for Victoria West on 23
November 2023. They alighted their lift and
took a walk. They past a
truck that was about to leave its parking bay and heard a loud noise
coming from it. The truck driver
scolded and accused them of
stealing. The truck driver summoned the police in the presence of the
appellants who stood by and waited
as they never stole from him.
Approximately 40-50 minutes later a bakkie came out of nowhere and
fired shots at the two appellants.
They ran into the bush and
returned to the road where they saw the third appellant’s
vehicle driving towards Beaufort-West.
He gave them a lift as their
lives were in danger. The police officers stopped the appellants’
vehicle and searched it. They
were arrested. The truck driver was
present and recorded a video footage of the arrest and the search.
[10]
Further contained in the appellants’ affidavits are averments
that they will not evade
their trial; they do not know the identities
of the State’s witnesses and thus have no intention to
interfere with them;
they also bear no knowledge of evidential
material relevant to the allegations made against them and undertake
not to interfere
with the investigation; they have stable
relationships and contribute towards the maintenance of their
dependents; they have fixed
addresses and have no outstanding
warrants of arrests and should they be kept in custody their
livelihoods and those of their families
would be prejudiced. In
respect of the first and second appellants, who are alleged to be
doing odd jobs, it was submitted, their
continued incarceration
entails “no work and no pay” whereas the third appellant,
who has been a firefighter for a
period of 14 years, would face
possible dismissal. This would destroy their family support
base; ruin them financially and
would have no means to appoint
private legal representatives to defend them. They claim that they
would meet any stringent conditions
attached to their bail.
[11]
In determining whether to admit the appellants to bail the Magistrate
was of the view that the
grounds listed in
s 60(4)
(a) and (d)
of the CPA found application. Firstly, because there was a likelihood
that if the appellants
were released on bail,
they would endanger the safety of the public, any person against whom
the offence was allegedly committed,
or any other particular person
or will commit a Schedule 1 offence; and secondly, they would
undermine or jeopardise the objectives
or the proper functioning of
the criminal justice system, including the bail system.
[12]
The Magistrate remarked that the State had a reasonably strong case
against the appellants. He
noted that the first and third appellants
had pending criminal trials against them whereas the third appellant
had recently been
released on bail and has therefore breached its
condition. As for the second appellant, the Magistrate reasoned, he
had previous
brushes with the law and thus not a stranger to the
criminal justice system. The Magistrate held that, regard being had
to the
manner in which the offence was planned and executed; the
presence of previous convictions and the pending criminal cases
against
the appellants, they were likely to commit a Schedule 1
offence should they be released on bail. He further took the view
that
they undermined and would undermine the bail system.
Accordingly, the court found, it was not in the interest of justice
to release
the appellants and consequently dismissed their bail
application.
[13]
Mr Paries, for the appellants, argued that they have family ties in
Beaufort-West, fixed addresses,
and are gainfully employed
breadwinners in stable relationships with no discernible risk of not
standing their trial or the possibility
of absconding. In addition,
it was argued that the first and third appellants did not breach
their bail conditions and that all
the appellants would plead not
guilty to the charge of theft at the trial in due course. Any
sanction for the offence, in the event
of a conviction, may be
equivalent to the period the appellants would have been detained
awaiting their trial. These were reasons
why bail ought to be
granted, so ran the argument.
[14]
On the merits, it was contended for the appellants, that the evidence
against them at trial will
be that of the police and the truck
driver, a single witness who had been exhausted at the time of the
alleged commission of the
offence. It was further argued that the
prospects of the State securing convictions against the appellants
were weak. Without setting
out any basis for that submission, it was
contented that I/O Booysen, who testified in this case, may be
biased.
[15]
It was further argued that the Magistrate misdirected himself in not
considering that the third
appellant was not at the scene of the
crime or identified as a perpetrator. That the Magistrate took
no heed of the first
and second appellants’ evidence that the
truck driver was very disturbed and aggrieved; that the court had no
regard to factors
generally used to identify the persons the truck
driver approached; that the Magistrate erred in not considering that
no stolen
goods were found in possession of the appellants and there
had been no fingerprints evidence presented to the court.
Insofar
as the Magistrate found that the likelihood was extant that the
appellants may commit a Schedule 1 offence, it was argued,
he erred.
[16]
According to the appellants the Magistrate failed to produce a value
judgment on the strengths
and weaknesses of the State’s case.
Any threat or harm to the witnesses or interference with the
investigation or any risk
that the appellant may be rearrested, it
was argued, could be remedied by attaching suitably strict bail
conditions which
would adequately safeguard the
interests of all the parties.
[17]
The crux of the State’s argument in opposing bail and resisting
this appeal is that it
has a very strong prima facie case of theft
against the appellants and that
it had been
able to establish the existence of a likelihood that the appellants,
if they were released on bail, will undermine or
jeopardise the
objectives or the proper functioning of the criminal justice system,
including the bail system as contemplated in
s 60(4)
(d).
Insofar as
the first and
third appellant had pending criminal cases involving theft and the
second appellant, eight previous convictions for
offences involving
an element of dishonesty, it was argued, the likelihood exists that
they will commit a Schedule 1 offence.
[18]
It is trite that an accused has an entrenched right to be released
from detention if the interest
of justice so permits. In
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[3]
the Court pronounced:
“
[49]
.
. .
Subsections (4), (9) and (10) of
s 60
should therefore be read
as requiring of a court hearing a bail application to do what courts
have always had to do, namely to
bring a reasoned and balanced
judgment to bear in an evaluation, where the liberty interests of the
arrestee are given the full
value accorded by the Constitution. In
this regard it is as well to remember that s 35(1)(f) itself places a
limitation on the
rights of liberty, dignity and freedom of movement
of the individual. In making the evaluation, the arrestee therefore
does not
have a totally untrammelled right to be set free. More
pertinently than in the past, a court is now obliged by s 60(2)(c),
(3)
and (10) to play a proactive role and is helped by ss (4) to (9)
to apply its mind to a whole panoply of factors potentially in
favour
of or against the grant of bail.”
At
79d-g para 53 it was said:
“
[53]
.
. .
But s 35(1)(f) neither expressly nor impliedly requires that
in considering whether the interests of justice permit the release of
that detainee pending trial, only trial-related factors are to be
taken into account. The broad policy considerations contemplated
by
the 'interests of justice' test, in that context, can legitimately
include the risk that the detainee will endanger a particular
individual or the public at large. Less obviously, but nonetheless
constitutionally acceptable, a risk that the detainee will commit
a
fairly serious offence can be taken into account. The important
proviso throughout is that there has to be a likelihood, ie a
probability, that such risk will materialise. A possibility or
suspicion will not suffice. At the same time, a finding that there
is
indeed such a likelihood is no more than a factor, to be weighed with
all others, in deciding what the interests of justice
are. That is
not constitutionally offensive. Nor does it resemble detention
without trial, the reprehensible institution really
targeted when one
speaks of preventive detention. Absent a proper basis for the
original arrest, it will be set aside. But if there
was a proper
cause, one cannot justify release solely on the absence of
trial-related grounds.”
[19]
It
is now settled that the powers of this Court are largely
circumscribed where the matter comes before it on appeal and not as
a
substantive application for bail. The Court must be swayed that the
Magistrate exercised the discretion which he or she has wrongly.
Even
though the Court may have a different view, it should not substitute
its own view for that of the Magistrate as that would
be an unfair
interference with the Magistrate’s exercise of his
discretion.
[4]
[20]
E
very
accused person has a right to a fair trial, which includes,
inter
alia
,
the right to be presumed innocent, to remain silent, and not to
testify during the proceedings.
[5]
It was not disputed that the appellants would not temper with the
evidence or that they were not flight risks. On the contrary,
the
evidence suggests that they pose no danger to the community of
Beaufort-West. The opposition by the State is primarily based
on the
appellants’ past conduct and that it has a strong prima facie
case against them.
[21]
The Magistrate may not have pertinently addressed the merits and
demerits of the State’s
case. However, it does not follow that
he did not apply his mind to this aspect. It is to be remembered that
a Court hearing a
bail application is concerned with the question of
possible guilt only to the extent that it may bear on where the
interests of
justice lie with regard to bail.
[6]
In any event, i
t
is often impossible, in a judgment, to refer to all the
considerations that arise. One of the principles applicable to
appeals
on questions of fact as laid down in
R
v Dhlumayo
[7]
is
this:
“
An
appellate court should not seek anxiously to discover reasons adverse
to the conclusions of the trial Judge. No judgment can
ever be
perfect and all-embracing, and it does not necessarily follow that,
because something has not been mentioned, therefore
it has not been
considered.”
[22]
The
views expressed by Heher JA in
S
v Mathebula
[8]
are
apposite:
“
But
a State case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test.
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be acquitted of the
charge:
S
v Botha en 'n Ander
2002
(1) SACR 222 (SCA)
;
(2002
(2) SA 680
;
[2002] 2 All SA 577)
at 230
h
,
232
c
;
S
v Viljoen
2002
(2) SACR 550 (SCA)
([2002]
4 All SA 10)
at 556
c
.
That is no mean task, the more especially as an innocent person
cannot be expected to have insight into matters in which he was
involved only on the periphery or perhaps not at all. But the
State is not obliged to show its hand in advance, at least not
before
the time when the contents of the docket must be made available to
the defence; as to which see
Shabalala
and Others v Attorney-General, Transvaal, and Another
1995
(2) SACR 761 (CC)
[1995] ZACC 12
; ;
(1996
(1) SA 725
;
1995 (12) BCLR 1593).
Nor is an attack on the
prosecution case at all necessary to discharge the onus; the
applicant who chooses to follow that
route must make his own way and
not expect to have it cleared before him. Thus, it has been held that
until an applicant has set
up a prima facie case of the prosecution
failing there is no call on the State to rebut his evidence to that
effect.”
[23]
In my view, the State has a fairly compelling prima facie case
against the appellants. To discharge
the onus the first and second
appellant did not adduce any exculpatory evidence with regard to
their presence in the vicinity of
a truck with which they had no
connection.
It is fairly apparent
that the third appellant acted in cahoots with the first and second
appellant. I say this because it was not
disputed that the second
appellant’s backpack was found in the third appellant’s
vehicle during the police search.
The second appellant must have put
his bag in the vehicle prior to the alleged nefarious activities. In
short, the third appellant
lurked in the background and drove the
getaway vehicle. No cogent criticism can be sustained insofar
as the Magistrate concluded
that the offence appears to have been
planned.
[24]
It is so that an
accused
should not be deprived of bail simply on the basis of his previous
misconduct. Much will depend on the nature of the charges
involved.
The appellants did not put up evidence, despite the onus that rested
on them, that they are unlikely to run into conflict
with the law in
future. It is an important consideration that the first and third
appellant had pending theft cases. The third
appellant was less than
frank when he claimed not to have breached his bail conditions. To
the extent that one of the bail conditions
was that
he
should refrain from committing further criminal offences, he breached
it.
[25]
The second appellant has relevant previous convictions. It matters
not that the last such conviction
was more than five years ago as his
counsel sought to argue. He clearly has t
he
propensity to commit further similar offences.
It also does
not enure to the benefit of the appellants that 41 members of the
community of Beaufort-West support their release
on bail. The alleged
theft from a stationary truck suggests that the appellants are a
menace to the society.
[26]
Two of the grounds as listed in s 60(4)
(a)
and(d)
have been established.
Having
weighed the appellants’ right to personal freedom and carefully
considered their personal circumstances against the
interest of the
society, the Magistrate’s conclusion that it was not in the
interest of justice that the appellants be released
on bail is above
reproach. The denial of bail on the ground that the appellants
will undermine or jeopardise the objectives or the proper functioning
of the criminal justice system, including the bail system
or commit a
Schedule 1 offence
is manifestly in
the interest of justice. The upshot of this is that the appeal must
fail. In the result, the following order is
made:
ORDER:
The appeal is
dismissed.
PHATSHOANE AJP
NORTHERN CAPE DIVISION
Appearance for the
appellants:
Adv A Paries
Instructed by
Borchards Attorneys, Cape Town
C/o Matthews &
Partners, Kimberley.
Appearance for the
respondent:
Adv L Pillay
Instructed by
Director of Public Prosecutions, Kimberley.
[1]
Section 50 not only prescribes the manner in which all suspects must
be dealt with after their arrest, but also rules that an
ordinary
suspect may not be detained indefinitely without the knowledge of
and intervention by a lower court. See
Du
toit- Commentary on the
Criminal Procedure Act:
RS
69, 2022 ch5-p43.
[2]
See
s 60
(8)
(a)-(c)
of the CPA
.
[3]
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at 78f-h para 49.
[4]
S v
Barber
1979 (4) SA 218
(D) at 220 E-G; See also the judgment of this Court
in
S v
Nteeo
2004 (1) SACR 79
(NC) at 82g-83c, para 8.
[5]
Section 35(3)(h) of the Constitution of the Republic of South
Africa, 1996.
[6]
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
above
n 3,) at 63e-64a, para 11.
[7]
1948 (2) SA 677
(A)
at
705–706.
[8]
2010
(1) SACR 55
(SCA)
para
12.