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2024
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[2024] ZAECMHC 23
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Saule v S (CA&R93/2023) [2024] ZAECMHC 23 (2 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION: MTHATHA
CASE
NO: CA & R 93/2023
In
the matter between:
WILLIAM
SAULE
Appellant
and
THE
STATE
Respondent
JUDGMENT
PITT
AJ
Introduction.
[1] The
appellant was charged with murder, conspiracy to murder, malicious
injury to property and possession
of unlicensed firearms and
ammunition. It is alleged that he used a TLB to destroy the home of
the complainant, and then hired
three hitmen to kill the complainant.
After the complainant was shot and killed by the hitmen, a chase and
shootout ensued between
the police and the three hitmen. According to
the respondent, the hitmen were being transported by the appellant
right after the
shooting when they were chased and apprehended by the
police.
[2] A
first bail application was launched on behalf of the appellant on 22
September 2022 in the Mount Fletcher
Magistrate’s Court, where
bail was refused. A further bail application on new facts, which the
respondent opposed, was launched
on 15 June 2023, and dismissed on
the ground that the facts relied on were not new.
Findings
of the court a quo.
[3] The
court
a quo,
in dismissing the appellant’s bail
application, found that from the evidence in the initial and renewed
bail applications,
and the arguments advanced on behalf of the
appellant and the respondent, it was not satisfied that the facts
raised were sufficient
to grant the appellant bail.
[4] In
her judgment on the bail application on new facts, the learned
magistrate held that the only fact
which can be considered as new was
that the investigation was completed and as such there is no
likelihood that he will interfere
with investigations. The magistrate
went further to say that while the appellant was in custody, his
girlfriend was expecting his
seventh child and the fact that the
child had since been born was raised in the initial bail application.
[5] She
further reasoned that the fact that the appellant was diagnosed with
glaucoma and a cataract, and
that he had a subsequent operation on 24
October 2-21 are not new facts. The bullet wounds, the appellant’s
injuries and
his diabetic condition were all facts already known to
the court from the initial bail application. The condition of the
appellant’s
grandchild who has a biological father for primary
care, was also known during the initial bail hearing.
[6] It
was submitted that the appellant’s financial position had
deteriorated substantially because
three of his head of cattle were
reported missing but were recovered. The learned magistrate found
that this was not a loss as
the cattle were recovered. It was also
alleged that 150 of the appellant’s sheep had died, that his
shop had since been broken
into, vandalised and closed, that his
family is unable to protect his assets. The court found that all of
these factors were present
at the initial bail application and were
not new facts to the court.
Grounds
of appeal.
[7] The
appellant brings this appeal on a number of grounds set out in his
notice of appeal. These grounds
are that the Honourable Magistrate
erred in finding that: -
(a) the
bail application by the appellant was not based on any new facts, and
that the appellant had failed
to demonstrate that there were any new
facts that had arisen since the refusal of bail on 15 September 2022;
(b) the
interests of justice required that the appellant be detained in
custody pending trial;
(c) exceptional
circumstances did not exist warranting the release of the appellant
on bail;
(d) the
alleged public outcry at the incident for which the appellant is
facing charges has not subsided;
(e) the
release of the appellant would undermine public order and public
confidence; and
(d) the
appellant failed on a balance of probabilities to satisfy the
requirements for his release on bail
on new facts.
[8] In
addition, the appellant submitted that the learned Magistrate erred
in concluding that: -
(a) the
personal and other circumstances set out in the appellant’s
affidavit in support of the bail
on new facts did not constitute
exceptional circumstances as envisages in section 60(11)(a) of the
Criminal Procedure Act 51 of
1977;
(b) the
State’s case was
prima facie
so strong that no
exceptional circumstances existed;
(c) the
interests of justice did not warrant the release of the appellant on
bail.
[9] The
appellant further contends that the Magistrate erred in
over-emphasising the strength of the State’s
case, and ought to
have held that the appellant had clearly demonstrated that there were
new facts which justified his release
on bail and that the following
new facts existed:
“
(a) that
the investigation by the South African Police Services (SAPS) was
complete and that the release
of the appellant on bail would not
interfere with the investigation and/or preparation of the State’s
case for trial;
(b) that
any public outcry that had existed in September 2022 had subsided and
that the State had not shown
that any public outcry still existed
which militated against the release of the appellant;
(c) that
the only evidence before the court
a quo
that the public
outcry had subsided and no longer existed, if it had existed at all,
was that of the appellant, and such evidence
was not contradicted;
(d) that
the time between the hearing of the bail appeal on new facts in
November 2023 was unduly lengthy
and his continued remand in custody
effectively subjected the appellant to a prison sentence before the
commencement of his trial
while he was still presumed innocent;
(e) that
the appellant had suffered a material change in his financial
circumstances which included the loss
of cattle and sheep as well as
his ability to conduct business from his trading store;
(f) that
the forfeiture proceedings under Mthatha High Court case number
5297/2022 for the forfeiture of
the appellant’s motor vehicles
and cash is a material change in his financial circumstances which is
a new fact which requires
his urgent attention and release on bail to
be able to attend thereto properly;
(g) that
the appellant’s eye condition has deteriorated and is
deteriorating and that his further incarceration
exacerbates such
condition and his ability to receive medical treatment as is
required;
(h) that
the new facts mentioned above considered in conjunction with the
previous circumstances relied on
by the appellant in support of his
bail application in September 2022 constitute exceptional
circumstances which justify his release
on bail.”
[10] It
is the appellant’s contention further, that the court
a quo
ought to have reconsidered the new facts in conjunction with the
following facts:
“
(a) that
the appellant’s business and farming operation require his
personal attention and that he
will suffer irreparable harm and loss
if he is not able to attend thereto;
(b) that
the appellant’s grandchild was handicapped and required his
financial support and care and
assistance;
(c) that
the appellant as a disabled person of advanced age and deteriorating
eyesight and physical condition
posed no flight risk whatsoever, and
that his continued incarceration was not in the interests of justice
or required in any way
in this matter.”
[11] The
appellant further contends that the court
a quo
ought to have
held that the interests of justice further warranted the release of
the appellant in the context of this particular
matter in that the
State had not shown:
“
(a) that
the appellant would attempt to evade his trial;
(b) the
appellant was likely to interfere with the State witnesses;
(c) that
the appellant would endanger any members of the public;
(d) that
the appellant was likely to jeopardize the proper functioning of the
criminal justice system; and
(e) that
the public disorder would result if the appellant were to be released
on bail.”
Evidence
in the court a quo in support of bail application on new facts.
[12] During
the bail application on new facts on 13 April 2023, the appellant
adduced evidence in support
of his application by way of an affidavit
which was read out in the court
a quo
by his legal
representative. Those new facts are set out below.
[13] The
appellant suffers from a condition described as advanced glaucoma and
leucoma and cataracts. On
24 June 2021, he underwent a cataract
operation to his left eye, and he has poor vision in both eyes
despite the operation. He
had been attended to by an ophthalmologist,
and he requires chronic treatment of eye drops, and the progress
needs to be reviewed
every six months. Since the last bail
application, he has run out of eye drops and he does not have any to
treat his condition.
He only has expired eye drops and he is afraid
to use them without the advice of the ophthalmologist who prescribes
his medication.
He has brought this to the attention of the
authorities, but they have ignored his request to take him to his
ophthalmologist or
any other doctor for attention to his eyes and
further treatment. Since running out of eye drops, the sight in his
right eye has
deteriorated substantially. A milky white appearance is
spreading over his right eye and he is not sure if this is a cataract
or
some other illness. His right eye is losing sight at a rapid
rate, and he is afraid of becoming completely blind in his right
eye
if he is not attended to by an eye specialist urgently.
[14] The
appellant set out a further set of new facts as follows. During his
arrest he was shot and received
four bullet injuries, which are
causing him severe discomfort and pain, extending to his left hip and
lower back. Since the previous
bail application, his mobility had
decreased substantially, and he walked with increased pain and great
difficulty. He was in constant
pain and despite having made the
authorities aware thereof, they have failed and refused to take him
to a doctor for treatment
of the pain he was experiencing. The bullet
wounds have closed but the scarring is particularly painful, his
muscles are simply
not recovering and are deteriorating.
[15] He
and his family are able to seek the necessary specialist medical care
that he requires. His reduced
mobility has made him sedentary and his
release on bail poses no risk whatsoever to the administration of
justice. He is not physically
able to flee and he is not a flight
risk in any way since he can hardly move and needs to be cared for by
his family.
[16] The
appellant further alleged that he suffers from diabetes, for which he
started treatment in April
2022. His chronic medication had since run
out and, despite having brought this to the attention of the
authorities, they have
failed to take him to a clinic and/or hospital
for further treatment.
[17] It
was his evidence further, that he has a grandchild who suffers from
epilepsy and cerebral palsy with
developmental delays who is
dependent on him, while he is the main breadwinner and support for
this child. This child’s father
(his son) works for him and
requires assistance from her family to look after and support this
child. He also alleges that his
daughter’s income is not
sufficient to pay for the extensive treatment and care that the child
needs. The appellant further
contends that his financial position has
declined dramatically since the previous bail hearing and there is
simply not enough money
to support his grandchild while he is in
custody.
[18] He
further stated that his family requires income to be generated by him
to look after the grandchild
and that it was in the best interests of
the minor child that he be released to generate an income which would
support and assist
the child with her terrible medical condition.
[19] Since
the previous bail application, the appellant’s financial
positions, so it is alleged, has
deteriorated substantially as a
result of certain factors. These factors are described as three
heads(herd/s?) of cattle having
been stolen from his livestock at his
homestead since his incarceration. His store and shop had been broken
into and vandalised
and that his family was not able to protect the
assets at the store, stock in trade and/or the business. He was the
person running
and managing the store and since his incarceration,
the business had deteriorated to such an extent that it has
effectively closed
down. His physical presence at the store is
urgently required to manage and save the store so that an income can
be generated for
his family.
[20] He
also contends that the State has applied for the forfeiture of a
Fortuner motor vehicle, a Toyota
Hilux vehicle, and R 26 300.00
cash that had been frozen. Because of his incarceration, he is unable
to consult his attorney
of record to properly oppose the application
for forfeiture. It has been difficult to give instructions and/or
attend to the signing
of documents while he is incarcerated. His
attorneys practice from Matatiele and he is incarcerated in Mthatha,
making consultations
extremely difficult and expensive and his assets
are accordingly vulnerable to being forfeited should his opposition
to the forfeiture
application not succeed.
[21] The
appellant further states that the prosecution was persisting to have
the forfeiture application
heard while he is in custody, thus making
it an abuse of the processes of the law with his rights being
prejudiced and forcing
him to waive his right to silence and attempt
to gather evidence against him before trial in this matter. The
appellant further
contended that this was a new development which is
exceptional and a breach of his fundamental rights.
[22] The
appellant further told the court
a quo
that the trial had been
set down for 30 October 2023 to 17 November 2023, which is an
extensive and long period for trial with
legal costs amounting to R
300 000.00, for which he needed to make financial arrangements
which he cannot do while in custody.
He will have to sell assets
and/or take out loans which his family are not able to do on his
behalf. He had not anticipated such
a long trial, which only came to
his attention after the bail hearing, which is a new fact that must
be taken into account.
[23] He
has been incarcerated for a lengthy period of eight months already
and the trial would only be heard
at the end of the year (2023),
which is an excessive delay and exceptional because the time he will
spend in prison is unreasonable
and excessive, thus making it
exceptional circumstances.
[24] The
appellant further highlighted that at the time of the previous
hearing, the investigating officer
indicated that the investigations
would be complete within approximately three weeks after the bail
hearing, and therefore should
have been completed at the time of the
bail hearing on new facts. This, according to the appellant,
constitutes a new fact that
must be taken into account in his favour.
He further contends that the State has had more than adequate time to
complete the investigations
and cannot maintain that he will in any
way interfere with the investigations as they purported to do at the
previous bail hearing.
[25] During
the previous bail application, the appellant alleged that he had an
address in Pretoria where
he could reside pending finalisation of the
investigations and the hearing of the matter. Since investigations
had been completed,
or should have been, there would be no prejudice
whatsoever to the State and witnesses should he be released on bail
and remain
at his rural home at Vuvu Location, Mount Fletcher.
[26] He
had no knowledge of who the witnesses were in the matter against him
and there is no possibility
of likelihood that he will interfere with
such witnesses even if their identities become known to him. He walks
with great difficulty
and is immobile. He is not in a physical state
to interfere with any witnesses, and he has no intention of
interfering with such
witnesses. His financial losses require him to
reside at his home at Vuvu Location, which is near to his business
and livestock
which must be managed by him, even if it is from his
home where he will be based.
[27] According
to the appellant, the alleged public outcry that the State relied on
at the previous bail
hearing had subsided and does not exist. He
further contends that it will not be reignited by the State in the
interim to oppose
bail. Any alleged community anger has subsided,
which anger of the community is not a ground to oppose his release on
bail. This
element which the State relied on has changed dramatically
and there is no danger or likelihood that if he were released on bail
that the public safety would be endangered in any way.
The
State’s case in opposing bail application on new facts.
[28] The
investigating office did not adduce any evidence in rebuttal of the
case put forward by the appellant
in support of his bail application
on new facts. The prosecutor submitted that the eye problem referred
to by the appellant as
a new fact was present at the time of the
hearing of the initial bail application. It is therefore not a new
fact. On 6 March 2023,
there was an order made by the court that the
appellant must be taken to the doctor by the investigating officer,
and that he was
subsequently taken to the doctor.
[29] The
State further contended that the fact of the bullet wounds referred
to by the appellant in the bail
hearing on new facts was present
during the previous bail hearing and was nothing new. This is
therefore also not a new fact. The
prosecutor submitted that the
accused being diabetic is not a new fact either. This was the
situation before the alleged offences
were committed by the
appellant.
[30] Regarding
the fact that the appellant has a duty to care for his grandson, the
State argued that if
the grandchild has her biological father, it is
his duty to look after his child and that of the appellant. The state
submitted
that the appellant conceded that the fact of his residence
in Pretoria was mentioned during the initial bail application and was
therefore not a new fact.
[31] The
State further highlighted that during the renewed bail application
the appellant confirmed that
the cattle had since been recovered, and
that even if he was not in custody, he was not going to go look for
his cattle himself
but would send his children to look after and for
them. It was argued by the State that this is also not a new fact or
exceptional
circumstance, especially since the cattle were recovered
and the appellant has not suffered any loss.
[32] With
regards to the assets of the appellant which were seized by the State
as instruments of an offence,
the State submitted that it was a High
Court matter and not a Regional Court matter.
[33] As
against the appellant’s contention that it is difficult for him
to consult with his attorneys
due to the long distance they have to
travel in order to consult with him at his current place of
detention, the State argued that
this was the choice of the appellant
to instruct an attorney who is far from where he is and that this was
not an exceptional circumstance.
[34] Further
according to the prosecution, the issue of the public outcry was
still present. The father of
the deceased and family members were
present in court and that he was opposed to the appellant being
released on bail. The community
was not protesting outside court, but
this did not mean that there was longer a community outcry against
the appellant being granted
bail.
[35] The
prosecution was of the view that even though the appellant’s
finances were not the same as
when he was not incarcerated, that
should not be the only factor to consider. The other factors must be
taken into consideration,
such as the offence that was committed
while the appellant was out on bail for another offence of malicious
injury to property.
The state contends that there was a high
possibility that if the appellant is released on bail that he would
commit another offence.
The
appellant’s submissions on appeal.
[36] It
was submitted on behalf of the appellant that the offence with which
he is charged does not fall
within the ambit of Schedule 6 of the
Criminal Procedure Act No. 51 of 1977 (“CPA”) and that
the State erred in approaching
the matter as such.
[37] Mr
Duminy argued in this regard that at the time of the bail hearing on
new facts, the appellant had
not yet been charged and therefore there
was uncertainty with regards to which Schedule of the CPA the
offences which the appellant
was charged fell under. He conceded,
however, that the appellant had since been provided with an
indictment which sets out the
charges in greater detail, thereby
confirming that the offence is a Schedule 6 offence.
[38] At
the time of the bail hearing on new facts, so the submission
continued, the investigation had not
yet been completed and the
investigating officer feared that the appellant may interfere with
the investigation if he was released
on bail. Mr Duminy argued that
the investigation should have been completed as at the time of the
renewed bail application. He
was of the view that since those
investigations were now complete, this was a ground on its own to
release the appellant on bail
because the appellant cannot interfere
with any police investigation. In support of this point, the
appellant referred to
S
v WC and Another
[1]
,
in which the new facts which were present were:
(a) the
investigation that had subsequently been completed;
(b) the
appellant’s child’s health that had deteriorated; and
(c) the
appellant’s financial position that had been changed and the
appellant was suffering financially.
[39] It
was conceded at the bail appeal hearing that whether the appellant is
charged with a Schedule 6 offence
is no longer a point of contention.
Regarding the existence of exceptional circumstances, it was further
argued on behalf of the
appellant that the new facts proffered by the
appellant, considered in conjunction with the previous circumstances
relied on by
the appellant, constitute exceptional circumstances and
indicate that it is in the interests of justice that the appellant be
released
on bail.
[40] Otherwise,
Mr Duminy persisted with the contention that the court
a quo
erred
in finding that there were no new facts that arose since the refusal
of bail in September 2022. It was also submitted that
the appellant
had set out new facts in detail in the affidavit supporting the
application for bail on new facts. On this score,
Mr Duminy submitted
that the State had not placed in dispute what was placed before the
court
a quo,
and which justified the appellant’s release
on bail.
The
state, so the argument went, did not establish that:
(a) the
appellant would attempt to evade his trial;
(b) the
appellant was likely to interfere with State witnesses;
(c) the
appellant would endanger any members of the public;
(d) the
appellant was likely to jeopardise the proper functioning of the
criminal justice system; and
(e) public
disorder would result if the appellant were to be released on bail.
[41] These
facts were merely denied by the State in cross-examination and the
investigating officer did not
give any evidence in rebuttal. On this
score, Therefore, so Mr Duminy argued, the court
a quo
should
have held that the appellant had demonstrated that there were new
facts which justified his release on bail.
[42] In
regard to the strength of the case for the state as a relevant factor
as to the existence of exceptional
circumstances, it was also argued
that no credibility finding was made against the appellant by the
court
a quo
and that the appellant had offered a plausible
explanation as to his whereabouts and activities on the day of the
alleged offences.
[43] Reference
was made to
S
v Jonas
[2]
,
where the court at 679A held that what the magistrate at the end of
the enquiry had before him was the uncontested evidence of
the
appellant denying that he had committed the offences or as in any way
implicated in the commission of the offences and the
appellant’s
evidence of an alibi which, if proved, would have served to show that
the appellant could not have committed
the offences. It was further
held at page 679G-L that –
“
[i]
f
the State was serious with its opposition to the granting of bail, it
should have led rebutting evidence – at least pacing
in dispute
the uncontested evidence of the appellant. Placing in dispute in this
sense, postulates a genuine dispute. Mere accusations
are not
enough.”
[44] Further,
it was submitted on behalf of the appellant that the provisions of
section 60(11)(a) of the
CPA require the appellant to satisfy the
court that he should be granted bail, with the word ‘satisfy’
presupposing
that he will discharge the onus on a balance of
probabilities.
S
v Tshabalala
[3]
;
also see
S
v Stanfield
[4]
.
[45] It
was further submitted that the personal circumstances of the
appellant, which include his age, the
fact that he has no previous
convictions, his health (deteriorating eyesight, diabetes and gunshot
injuries suffered during his
arrest), his grandchild’s health,
his business and farming interests, his changed financial
circumstances and the lengthy
delay of the trial constitute grounds
for releasing the appellant in the interests of justice as
contemplated in section 60(11)
of the CPA, alternatively, they
constituted exceptional circumstances as envisaged in section
60(11)(a) of the CPA.
[46] Mr
Duminy submitted that had the court
a quo
properly applied its
mind to and considered the factors set out in Section 60(7) of the
CPA referred to above, it should have come
to the conclusion that the
release of the appellant on bail would not result in any danger to
state witnesses.
[47] He
further argued in accepting the investigating officer’s vague
statements relating to public
outcry and possible public disorder
should the appellant be released, the court failed to approach the
application of section 60(4)(e).
[48] Mr
Duminy was of the view that the vague and unsubstantiated allegation
that the appellant’s release
would result in public disorder or
undermine public peace and security was not established on a
preponderance of probabilities
and the court
a quo
erred in
taking this into account against the appellant. It was further
submitted on behalf of the appellant that the court
a quo
ought
to have held that it was in the best interests of justice that the
appellant be released on bail pending his trial and/or
that
exceptional circumstances existed justifying the appellant's release
on bail.
The
State’s submissions on appeal.
[49] Mr
Mkentane submitted on behalf of the State that an appeal against
refusal of bail is governed by section
65(4) of the CPA, which
provides that 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
even the court or Judge shall give
the decision which in its opinion
the power court should have given.
[50] He
further submitted that in the present case, the appellant has failed
to discharge the onus of establishing
on a balance of probabilities
that exceptional circumstances exist which in the interests of
justice permit his release on bail
as required by section 60(11)(a)
of the CPA. According to the prosecution, the appellant lodged
another bail application on the
same facts. In this regard, Mr
Mkentane submitted that the record of the initial bail application
and the application on new facts
does not reveal any exceptional
circumstances which in the interests of justice permit the
appellant’s release on bail. He
took the view that the court
should consider why relevant and available information was not placed
before the court in the initial
application.
[51] The
respondent contends that the appellant will likely contravene the
provisions of section 60 (4)(e)
directly or indirectly. It is alleged
that the appellant murdered the complainant who appeared to be a
witness, and now the appellant
is facing more serious offence
including murder of the complainant, an offence which carries life
imprisonment.
[52] It
was further submitted on behalf of the respondent that there is a
high risk of interference with
the state witnesses should the
appellant be released on bail and there is a likelihood that public
peace would be disturbed since
community members vandalised the
appellant’s shop or business while he was incarcerated. On
these bases, Mr Mkentane submitted
that it cannot be said that the
interests of justice permit the release of appellant on bail.
[53] The
State contended that it has a very strong case against the appellant
and that the offences against
him are serious as the carry a minimum
sentence of life imprisonment, which can influence the appellant to
interfere with state
witnesses, to evade trial, and or disturb public
peace should he be released on bail.
The
law.
[54] A
bail appeal is brought in terms of section 65 of the CPA, which
provides as follows:
“
65. Appeal
to superior court with regard to bail.
(1)
(a) An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by
the imposition by such court of a
condition of bail, including a condition relating to the amount of
bail money and including an
amendment or supplementation of a
condition of bail, may appeal against such refusal or the imposition
of such condition to the
superior court having jurisdiction or to any
judge of that court if the court is not then sitting.
(b) The
appeal may be heard by a single judge.
(c) A
local division of the High Court shall have jurisdiction to hear an
appeal under paragraph (a) if the
area of jurisdiction of the lower
court in question or any part thereof falls within the area of
jurisdiction of such local division.
(2) An
appeal shall not lie in respect of new facts which arise or are
discovered after the decision against
which the appeal is brought,
unless such new facts are first placed before the magistrate or
regional magistrate against whose
decision the appeal is brought, and
such magistrate or regional magistrate gives a decision against the
accused on such new facts.
…
(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 shall give the decision
which in its or his opinion the lower
court should have given.”
[55]
In
S
v Simthembile Yanta
[5]
,
certain general principles were identified as relevant when a court
is approached for a bail application on new facts. Those principles
were summarised as follows:
“
(a)
Whether
the facts came to light after the bail was refused. Such facts can
include circumstances which have changed since the first
bail
application was brought such as the period that an accused had been
incarcerated.
(b)
Whether
the facts are sufficiently different in character from the facts
presented at the earlier unsuccessful bail application
in that it
should not simply be a reshuffling of old evidence. The court was
referred to
S
v Mohamed
[6]
and
S
v Petersen
[7]
.
(c)
Whether
the alleged new facts are relevant in that if received by the court,
it would
per se
or together with other facts already before
the court from the initial bail application, assist the court to
consider the release
to consider the release of an accused afresh.
(d)
The
court hearing an application on alleged new facts must determine
whether such facts are indeed new with reference to the evidence
previously presented in the unsuccessful bail application. Mbenenge
AJ, as he then was, in
S
v Mpofana
[8]
explained that ‘
whilst
the new application is not merely an extension of the initial one,
the court which entertains the new application should
come to a
conclusion after considering whether, viewed in the light of the
facts that were placed before court in the initial application,
there
are new facts warranting the granting of bail
.’
(e)
Where
evidence was known and available to a bail applicant but not
presented by him at the time of his earlier application, such
evidence can generally not be relied upon for purposes of a new bail
application as new facts. In
S
v Le Roux en andere
[9]
,
it was explained that in the absence of such a rule, there could be
an abuse of process leading to unnecessary and repeated bail
applications and that an accused should not be permitted to launch
bail applications on several successive occasions by relying
on the
piecemeal presentation of evidence.”
[56]
And
in
S
v Mququ
[10]
,
where the court held that new facts included:
“
(a)
that
the appellant’s trial had been delayed for a lengthy period;
(b)
that
the appellant was suffering financially; and
(c)
that
the appellant’s health was deteriorating in custody pending
trial.”
Application
of the law to the appeal.
[57]
During
the hearing of the bail appeal, the appellant persisted with the
facts raised in the bail hearing on new facts. For edification,
I
will mention these. The first fact is that the investigation was
complete, and that the appellant would not interfere with the
investigation and/or preparation of the State’s case for trial.
[58]
Although
it was argued that any public outcry that existed in September 2022
had died down and the State had not shown that any
public outcry
still existed which militated against the release of the appellant on
bail, the only evidence was that of the appellant
that such an outcry
had subsided. His evidence in this regard was not contradicted
by the State.
[59]
I
note that the appellant’s initial bail application was heard in
September 2022. His bail application on new facts was heard
in
November 2023. He continues to be in custody. As at the time of the
renewed bail application and the hearing of this appeal,
the trial of
the matter had not yet commenced, but mentioned was made that it was
to commence in April 2024. I am of the view that
this is unduly
lengthy and that his continued remand in custody effectively subjects
him to a prison sentence before the commencement
of the actual trial
while he was still presumed innocent.
[60]
Reference
was made to the pending forfeiture case by the State against the
appellant in respect of his cash and motor vehicles.
This was argued
to be a new fact which requires his urgent attention and release on
bail to be able to attend thereto properly.
I hold the view that this
is a big contributor to the financial circumstances of the appellant,
and he is severely prejudiced by
the forfeiture proceedings as he is
not able to effectively oppose those forfeiture proceedings while he
is in custody.
[61]
Another
point which was presented as a new fact was the deterioration of the
appellant’s eye condition and his further incarceration
exacerbates his condition and his ability to receive medical
treatment as is required. The appellant challenges the strength of
the case against him. He will succeed in doing so if he is able to
show by adducing acceptable evidence that the State’s
case
against him is non-existent, or subject to serious doubt. Where the
appellant’s evidence stands alone, as it does in
the present
appeal, then the suggestion that the State’s case is
non-existent or doubtful becomes almost a foregone conclusion.
If the
State does not lead evidence in rebuttal, then I fail to see how it
can be said that the appellant had not succeeded in
discharging the
onus.
[62]
In
determining whether the bail applicant poses a real and imminent
danger to the safety of state witnesses the court must consider
the
grounds set out in section 60(7) of the CPA, which are as follows:
“
(a) the
fact that the accused is familiar with the identity of witnesses and
with the evidence which they
may bring against him or her;
(b) whether
the witnesses have already made statements and agreed to testify;
(c) whether
the investigation against the accused has already been completed;
(d) the
relationship of the accused with the various witnesses and the extent
to which they could be influenced
or intimidated;
(e) how
effective and enforceable bail conditions prohibiting communication
between the accused and witnesses
are likely to be;
(f) whether
the accused has access to evidentiary material which is to be
presented at his or her trial;
(g) the
ease with which evidentiary material could be concealed or destroyed;
or
(h) any
other factor which in the opinion of the court should be taken into
account.”
(S
v Mauk
[11]
and
S
v Botha en another
)
[63]
Kriegler
J, in S v
Dlamini;
S v Dladla A and Others; S v Joubert; S v Schietekat
[12]
,
held as follows regarding exceptional circumstances:
“
[57]
It
is important to note that sub-s (4)(e) expressly postulates that it
is to come into play only “in exceptional
circumstances”.
This is a clear pointer that this unusual
category of factors is to be taken into account only in those rare
cases where it is
really justified. What is more, sub-s (4)(e)
also expressly stipulates that a finding of such exceptional
circumstances has
to be established on a preponderance of
probabilities (“likelihood”). Lastly, once the
existence of such circumstances
has been established, paragraph (e)
must still be weighed against the considerations enumerated in sub-s
(9) before a decision
to refuse bail can be taken. Having regard to
these jurisdictional prerequisites, the field of application for
sub-ss (4)(e) and
(8A) will be extremely limited. Judicial
officers will therefore rely on this ground with great circumspection
in the knowledge
that the Constitution protects the liberty interests
of all.”
From
the above, it follows that the court
a quo
had a duty to
consider these factors and weigh them against the mere say- so of the
investigating officer who, as the appellant
argued, made bald,
unsubstantiated, and vague allegations relating to the safety of
state witnesses.
[64]
When
regard is had to the fact that the investigation is now complete. it
can be said that the fact that the appellant cannot interfere
with
the investigation constitutes a new fact as was held in
S v WC and
Another
referred to above.
[65]
In
the circumstances of the present matter, I find the following to
constitute exceptional circumstances which warrant the release
of the
appellant in the interest of justice. I conclude that the court
a
quo
erred in not accepting the appellant’s circumstances as
referred to above as exceptional and warranting consideration for
release of the appellant on bail in the interest of justices.
However, this was not the only reason for my decision. I also
considered
other factors such as the financial interests of the
appellant, the fact that he has a forfeiture application to also
oppose, and
he must prepare for his trial, in reaching my decision. I
therefore find that there are exceptional circumstances, and that it
is in the interest of justice that the appellant be released on bail
pending his trail.
Order.
Accordingly,
the court makes the following order:
1.
The
bail appeal succeeds and the order of the court
a
quo
is set aside and replaced with
the following order:
1.1
The
appellant is granted bail in the sum of R 20 000.00 subject to
the following conditions:
(a)
The
appellant is prohibited from making contact, directly or indirectly
with any witnesses in the case pending before court.
(b)
The
appellant is to report to the Mount Fletcher police station twice a
week, every Tuesday and Friday between 6am and 6pm.
(c)
The
appellant must reside at his home at Vuvu Location, Mount Fletcher
for the duration of his trial, unless exceptional circumstances
are
reported to the investigating officer warrant that he resides
elsewhere.
(d)
The
appellant is ordered to attend his trial on the given date and on
subsequent days not later than 8h30am and to remain in attendance
until this matter is finalized or he is excused by the court.
DV
PITT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
:
Adv
Duminy
Instructed
by
: McCleod Attorneys
Matatiele
Counsel
for the Respondents :
Adv Mkentane
Instructed
by
: Director of
Public Prosecutions
Mthatha
Heard
on
: 23 February 2024
Date
judgment delivered
:
02 May 2024
[1]
S v WC
and Another
2022 (1) SACR 159 (GJ)
[2]
S
v Jonas
1998
(2) SACR 677 (EC).
[3]
S v
Tshabalala
1998 (2) SACR 259
(C) at 269g-i.
[4]
S v
Stanfield
1997
(1) SACR 221
(C) at 23.
[5]
S v
Simthembile Yanta
under
case number Cc 44/2021 Western Cape Division Cape Town per De Wet AJ
at para 15.1 to 15.4.
[6]
S v
Mohamed
1999
(2) SACR 507 (C).
[7]
S v
Petersen
2008
(2) SACR 355 (C).
[8]
S v
Mpofana
1998
(1) SACR at 44-45.
[9]
S v Le
Roux en andere
1995
(2) SACR 613
W at 622.
[10]
S
v Mququ
2019
(2) SACR 207 (ECG).
[11]
S v
Mauk
1999
(2) SACR 479
at 488. Also see
S
v Botha en another
2002
(1) SACr 222 (SCA)).
[12]
S v
Dlamini;
S v Dladla A and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC) at para 57.