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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case. No.: A249/2023
Lower Court Case No.: 16/564/2023
Hearing on: 25 April 2024
Judgement on: 13 May 2024
In the matter between:
NICOLE JOHNSON Appellant
and
THE STATE
This judgment was handed down electronically on by email circulation to the parties’ legal representatives’ email addresses.
JUDGMENT
SLINGERS J
[1] The appellant, Nicole Johnson (‘Johnson’), was arrested on 29 September 2023
along with her husband. They were charged with two other persons and on 2
October 2023, she made her first appearance in the court a quo. On 9 October
2023, all the accused, including Johnson applied for bail. Both Johnson’s legal
representative and the state agreed that the bail application fell within the ambit
of schedule 5 of the Criminal Procedure Act (‘CPA’) as they were charged with
contravening section 9(1) of the Prevention of Organized Crime Act (‘POCA’),
theft of a motor vehicle (the value whereof exceeded R100 000.00) and fraud.
[2] In accordance with the provisions of section 60(11) of the CPA, in a bail
application brought within the ambit of schedule 5, a court shall not order the
release of an accused until he/she, having been given a reasonable opportunity
to do so, adduces evidence which satisfies the court that the interests of justice
permit his/her release.
[3] Section 60(4) of the CPA provides that:
‘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 or any 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 tis the likelihood that the accused, if he or he 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 jeopardize the objectives or the proper functioning of the criminal
justice 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;’
[4] As seen from the preceding paragraph, the release of an accused would not be
in the interests of justice where one or more of the grounds set out in section
60(4) are established. Put differently, bail may be refused if one of the grounds
set out in section 60(4) have been met.
[5] In support of her bail application Johnson elected not to present vive voce
evidence and instead presented an affidavit that was duly read into the record. A
report prepared by the Department of Social Development at the request of the
court a quo was also received as an exhibit and read into the record. Johnson’s
co-accused similarly applied for bail, duly supported by affidavit. In opposing bail
for all the accused, the state presented an affidavit by the investigating officer,
Lieutenant Colonel Van Renen.
[6] On 30 October 2023, the court a quo delivered its judgment refusing the release
of Johnson on bail pending her trial. 1 On 17 November 2023, Johnson filed a
Notice of Appeal against this decision refusing to grant her bail . Before the
appeal could be entertained, Johnson brought a second bail application based on
new facts. In this application Johnson presented vive voce evidence on 21
December 2023. This application was opposed by the state which again
presented evidence on affidavit by the investigation officer. Johnson was
unsuccessful with the bail application based on new facts with judgment being
delivered on 16 January 2024.
[7] This is an appeal against both decisions refusing bail.
[8] The original Notice of Appeal noted thirty -one grounds of appeal with m ultiple
grounds pertaining to the purported bias or prejudice of the magistrate, the failure
to individualize Johnson’s bail application from that of her co- accused and her
likelihood to attend court and not evade her trial. It also included the following
grounds of appeal wherein it is alleged that the magistrate erred by:
(i) allowing the state to make further submissions after Johnson’s legal
representative had replied but refusing her legal representative permission
1 The court a quo refused bail for all the accused.
to make further submissions in relation thereto even though Johnson had
to discharge the onus to show that her release on bail was in the interests
of justice;
(ii) having inadequate regard to the social worker’s report obtained at the
request of the magistrate;
(iii) misconstruing the evidence relating to Johnson’s need to adjust the petrol
price at her garage and how this occurred;
(iv) misconstruing the allegations pertaining to the identity of the state
witnesses, and confus ing the allegations pertaining to the complainants
with those related to the unidentified state witnesses referenced in the
investigating officer’s affidavit;
(v) holding that Johnson had family overseas;
(vi) over-emphasizing the possible sentence which could be imposed and the
failure to have regard to the presumption of innocence until proven guilty
and the right to remain silent;
(vii) holding that Johnson did not state in her affidavit that she was the primary
care giver of her minor children, whereas this was obvious from not only
her affidavit but also the social worker’s report;
(viii) holding that there was a likelihood that if Johnson was released on bail
with conditions, she would not adhere thereto because she is a member of
the gang;
(ix) holding that if Johnson was released on bail, there was a likelihood that
she would conceal or destroy evidential material; and
(x) holding that Johnson’s version that the Pollsmoor nurse’s refusal to treat
her was highly improbable and that the nurse had not made a statement to
this effect, so it was clear that Johnson had attempted to mislead the
court.
[9] The appellant adopted a shotgun approach and challenged almost every finding
by the magistrate.
[10] In the heads of argument filed on behalf of Johnson it was argued that the
following were narrow issues which justif ied interference with the decision of the
court a quo:
(i) the failure to individualize Johnson’s application and considering it
collectively with that of the other accused’s’ applications;
(ii) the evidence does not show that there is a likelihood that Johnson would
commit a schedule 1 offence if released on bail;
(iii) the evidence does not show that there is a likelihood that she would
interfere with witnesses or evidence or the investigation of she is released
on bail;
(iv) there is no evidence that Johnson would undermine or jeopardize the
objectives or the proper functioning of the criminal justice system, if she is
released on bail;
(v) there is no evidence that she would not attend court if released on bail;
and
(vi) there is no evidence that her release would disturb public order or
undermine the public peace or security.
The first bail application
[11] In her affidavit filed in support of her first bail application, Johnston stated, inter
alia that:
(i) the facts deposed to in her affidavit are to the best of her knowledge, true
and correct;
(ii) she was arrested at her home on 28 September 2023 in relation to an
incident which occurred on 24 November 2022;
(iii) she grew up and resides in the Western Cape although at one stage she
intended to move to Gauteng;
(iv) she is currently studying towards her LLB degree at UNISA;
(v) she is married and has a 17-year-old son and a 15-year-old daughter;
(vi) the family home is owned by a company of which she is the sole
shareholder and director;
(vii) she is self -employed and receives a salary from the various businesses
she owns which include two beauty therapy outlets and a retail shop. She
also draws a salary from a petrol station which she co- owns with her
husband;
(viii) her average monthly income in the most recent financial year from these
businesses was R97 100;
(ix) she is the senior person in all her businesses and solely responsible for
the day to day running of them. As she does not trust anyone to run the
business, she has not empowered anyone else to operate the businesses
and without her the businesses will fail. Johnson goes on to state:
‘For example, the price of fuel increased on Wednesday, 3 October 2023
and I and the only person in the business t hat can change the price of fuel
at the fuel pumps. It has not been done.’;
(x) Johnson explains that she had an emergency medical operation and was
put under a strict regime when she was discharged. She goes on to state
that the nurse at Pollsmoor refused to change her dressing from the
operation and advised her that only a doctor can do so;
(xi) she has a pending criminal matter which originates from 2014 in respect
whereof she has been released on a warning;
(xii) she has a fixed address, is financially stable and is not a flight risk;
(xiii) in respect of the motor vehicle, which is the subject of the theft charge,
she states:
‘I am aware that the vehicle mentioned in count 1 was owned by Kelly
Stuurman. She was the girlfriend of my employee. Both of them lived in a
house that I own. I paid the deposit for the motorvehicle and Stuurman
financed the balance. Her boyfriend, who also was an employee of mine
stole a vast amount of money from my business and defrauded a business
partner. When I found this out and confronted him he fled and switched
off his phone. I have not spoke n to either of them since then and do not
know their whereabouts.’;
(xiv) Johnson states that she did not supply the SAPS with any false
information before or after her arrest , and she has never been accused of
frustrating the criminal justice system or the bail system ever;
(xv) Johnson denies that she stole the motor vehicle and stated that she has
not even touched the vehicle; and
(xvi) she denied being present when any assault took place and denied making
a misrepresentation to anyone or being involved in any fraud.
[12] Section 65(4) of the CPA sets out the approach to be adopted when considering
an appeal against the refusal of bail. It 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 event the court or judge shall give the decision
which in its or his opinion the lower court should have given.’
[13] I deal firstly with the criticisms and grounds of appeal which allege that the court
failed to consider Johnson’s bail application individually and on its own merits.
[14] The court a quo specifically states that it will deal with each application
individually2and proceeds to deal with Johnson’s personal circumstances .3 In
evaluating the provisions of section 60(4) and whether the interest of justice
permits the granting of bail, the magistrate dealt with each subsection and
evaluated the case for each accused and the opposition thereto by the state.
The form of the judgment dated 30 October 2023, was in my view, necessitated
by all four accused bringing the bail application in the same proceedings and in
the same manner. All the accused, including Johnson as well as the state
presented their cases on affidavit.
[15] When the magistrate’s evaluation of Johnson’s application and the state’s
opposition thereto is analyzed within the context of the requirements of section
2 page 654, ln 24-25
3 page 648, ln14 and page 675, ln23
60(4) of the CPA , it cannot be said that she failed to consider the merits of
Johnson’s application on its own or that she failed to individualize Johnson’s bail
application. This is evidenced by inter alia when she accepts that the charges
faced by Johnson does not include an element of violence, as the charges
against her co -accused do. Similarly, the court a quo was cognizant that the
evidence presented did not show that Johnson made any threats of violence
whereas it did in respect of her husband. If the court a quo had failed to
individualize Johnson’s bail application from that of her co – accused, it would
have made general findings in respect of section 60(4)(a) to (d). This was not
the case.
[16] In considering whether the evidence presented established that there was a
likelihood that Johnson, if she was released on bail, would endanger the safety of
the public or any particular person or would commit a schedule 1 offence, the
magistrate found that the evidence presented showed that Johnson harbored
resentment against her ex-employee who allegedly stole money from the garage.
This resentment manifested in Johnson, together with her co- accused,
undertaking a manhunt to locate the rogue employee and to remove the motor
vehicle which is the subject of the theft charge. The evidence which shows that
Johnson used deception and misrepresented who she was to locate the vehicle
and to have it removed was not challenged by Johnson or her legal
representative. On the contrary, they argued that Johnson was entitled to act in
the manner that she did as she had assisted with the financing of the vehicle and
provided a R100 000.00 as a deposit for its purchase. They submitted that this
was a civil dispute and not a criminal one. However, this argument is
disingenuous as the steps taken by Johnson was not to recover her loan but to
recover the money which was allegedly stolen from her.
[17] Section 60(4)(c) of the CPA provides that one of the factors a court may consider
when determining if there is a likelihood that an accused, if released on bail,
would endanger the safety of the public or any particular person or will commit a
Schedule 1 offence is the issue of resentment which the accused is alleged to
harbour against any person.
[18] In the circumstances, the court a quo cannot be said to have erred when it found
that there was a likelihood that Johnson, i f released on bail would endanger the
safety of the public or any particular person or would commit a Schedule 1
offence.
[19] In considering whether the evidence presented established that there was a
likelihood that Johnson, if released on bail, would attempt to evade her trial, the
court recognized the right to familial life contained in section 28(1)(b) of the
Constitution as well as that the best interests of the child contained in section
28(2) of the Constitution. However, the magistrate, correctly in my view, held
that these rights could not override the interests of justice or the public interest.
[20] The magistrate cannot be faulted for finding that neither Johnson nor her
husband mentioned that their children would suffer financially or emotionally if
they were further detained. Johnson’s affidavit addresses her children in a single
paragraph which is set out in full below:
’12. I am married and we have two minor children, a 17 year old son and a 15
year old daughter. Our two children attend school and do very well
academically. My son is in his final year and has received numerous
offers to study further abroad.’
[21] Therefore, the court a quo was correct when it records that Johnson via her legal
representative states that she is the minor children’s primary caregiver but that it
was never mentioned in her affidavit.
[22] During the hearing of the bail appeal, Johnson’s legal counsel submitted that the
social worker’s report clearly stated that Johnson was the primary caregiver.
This is not so. Other than reporting in an introductory paragraph that ‘A Primary
Care givers report was requested by Cape Town Court 16 Magistrate for Trac y
Johnson Stanfield’, the contents of the report do not support the allegation that
Johnson is the primary care giver. On the contrary, it speaks about the minor
children’s relationship with both parents which is evident from the following
excerpt:
‘The children of the accused reported that they have a strong relationship with
their parents. The son report that he speaks to both parents when he is facing
challengers. The maternal grandmother reported that the daughter is very close
to their parents. The children reported that they are close to their maternal
grandmother. She loves and takes care of them.’
[23] The court a quo correctly found that it was not the social worker’s mandate to
make a recommendation on the granting or refusal of bail but rather to determine
whether the minor children were being looked after. In evaluating the social
worker’s report , it is evident that the author thereof was not qualified nor
equipped to make a recommendation pertaining to the release o n bail as she
does not address the seriousness of the charges or any of the other
requirements set out in section 60(4) of the CPA. The social worker’s mandate
and expertise pertained to whether the minor children were being cared for in the
absence of their parents.
[24] However, the court a quo erred when it found that Johnson had family overseas
as there was no evidence to support this finding. This factual error influenced the
magistrate’s finding that the evidence presented established that there was a
likelihood that Johnson, if she was released on bail, would attempt to evade her
trial. Therefore, this finding by the magistrate cannot be sustained.
[25] In considering the evidence presented in respect of section 60(4)(c) the court
found that there was a likelihood that Johnson, if released on bail would attempt
to influence or intimidate witnesses or to conceal or destroy evidence.
[26] In reaching this conclusion, the court considered Johnson’s affidavit which
unequivocally states that ‘...For example, the price of fuel increased on
Wednesday, 3 October 2023 and I am the only person in the business that can
change the price of fuel at the fuel pumps.’
[27] This statement was proven to be false by the evidence presented by the state
showing that the fuel price had indeed been changed at the fuel pumps after
Johnson was arrested and detained. Once again, this evidence was not
contradicted. On the contrary, Johnson’s legal representative attempted to
downplay the evidence by making submissions from the bar that Johnson had
made prior arrangements to change the fuel price.
[28] Furthermore, after it was announced in open court that the police would be
attending at the petrol station to conduct investigation at the fuel pumps, the
garage was mysteriously closed for business, thus preventing the police from
conducting their further investigation. Although Johnson denies shutting down
the business, her denial must be seen against the context of her statement that
she is the only person who runs or operates the business.
[29] In the circumstances, t he magistrate’s conclusion that Johnson prevented the
investigation into the petrol price adjustment as she wanted to conceal the
evidence that the petrol price had been changed while she was in custody cannot
be faulted after considering the evidentiary and factual matrix. The magistrate
correctly noted that Johnson’s legal representative’s submission that prior
arrangements had been made to change the fuel price constituted a submission
from the bar which carried no evidentiary weight. Furthermore, she correctly
pointed out that it was contradictory to what was contained in Johnson’s affidavit.
[30] The court also addressed the fact that Johnson contradicted herself in stating
that she does not know who the state witnesses are but then goes to state that
she is aware that the vehicle in question was owned by Kelly Stuurman, who was
the girlfriend of her employee who stole a vast amount of money from her.
Therefore, Johnson could not have declared that she did not know who the
witnesses were.
4
[31] The grounds of appeal in this respect states the magistrate erred
‘In misconstruing the allegations pertaining to the identity of the State witnesses.
In this regard, the learned Magistrate appears to have confused the allegations
pertaining to the complainants with those related to the unidentified State
witnesses that were referred to in the Investigating Officer’s affidavit.’
[32] However, at the time Johnson deposed to her affidavit she would not have had
insight into the investigating officer’s affidavit as it was presented to the court
after Johnson’s case had been presented. There is nothing in the record to show
that she knew what was in the investigating offic er’s affidavit at the time of
4 Section 60(4)(a) provides that one of the factors a court may consider in determining the likelihood that
an accused, if released on bail, would influence or intimidate witnesses or conceal evidence, is the fact
that an accused is familiar with the identity of witnesses and the with the evidence which they may bring
against him or her.
deposing to her affidavit. Furthermore, her affidavit does not state that I know
the complainants but do not know the other witnesses. On the contrary, she
firmly states that ‘I do not know who the State witnesses are...’
[33] In Johnson’s affidavit, she also states that ‘... the nurse at Pollsmoor refused to
change my op. dressings. She said only my doctor can.’
[34] When the state sought a postponement to investigate this aspect of the
evidence, Johnson’s legal representative objected thereto and informed the court
a quo that the senior nurse at the Pollsmoor hospital section would state that she
has refused to deal with Johnson’s operation stiches. When it was pointed out to
the legal representative that this was the very issue the state wanted to
investigate, the legal representative informed the court that they do not have the
nurse’s name.
[35] After the state’s investigation into this aspect , it was placed on record that
Johnson refused to grant the nurse consent to treat her stitches. Furthermore,
the senior nurse denied that she refused to deal with Johnson’s stitches . This
differed materially from Johnson’s evidence on this aspect.5
[36] Therefore, the magistrate cannot be faulted for finding that Johnson attempted to
mislead the court in respect of her knowledge of the witnesses’ identity, the
change of fuel at the petrol pumps and the refusal of the nurse to deal with her
stitches.
[37] In considering whether there was a likelihood that Johnson, if released on bail
would undermine or jeopardize the objectives or the proper functioning of the
criminal justice system, including the bail system, the magistrate incorrectly found
that Johnson would not adhere to bail conditions as she was a member of
5 page 338, lines 8-13; page 410, line 7 to page 412, line 3
accused 1’s gang. No evidence was presented that Johnson was a gang
member. Therefore, this finding cannot be sustained by the evidence.
[38] However, the evidence shows that Johnson actively associated herself with the
activities of and furthered the objectives of accused 1, her husband, and her co-
accused in locating the motor vehicle and removing same without any legal
authorization to do so.
[39] I turn now to the ground of appeal that the magistrate erred:
‘By allowing the Prosecutor to make further submissions after the Appellant’s
legal representatives had replied but refusing the Appellant’s legal
representatives permission to make further submissions in relation thereto even
though the Appellant bore the onus of proving that her release on bail would be
in the interests of justice.’(own emphasis)
[40] A consideration of the record will show that although Mr Maharaj, as Johnson’s
legal representative, requested to make further submissions after the prosecutor
had done so after Johnson’s legal representatives had replied, it did not relate to
the submissions made by the state.
[41] During his exchange with the court, Mr Maharaj first states that during
consultations with his client he was able to establish certain issues he wanted to
bring to the court that was not contained in the submissions. He goes on to state
that it was not contained in his reply as it was information obtained during the
morning by Johnson.
6 After the state objects, Mr Maharaj does an about -turn
6 page 634, line 6-13; line 23 – page 635, line 3
and informs the court that the aspects he wanted to address the court on has
been covered and it nothing new.7
[42] Therefore, Johnson’s legal representative was not prevented from responding to
the state’s submissions and on a reading from the record it appears that he was
not prevented from addressing the court on issues already covered as he
conceded that it was not necessary.
[43] The appeal against the refusal to grant bail made much ado about the
‘duplicitous’ approach of the magistrate to the affidavit presented by Johnson as
compared to those presented by the state.
[44] It is common cause that the bail application fell to be considered within the ambit
of schedule 5. Therefore, Johnson had the onus to show that her release was in
the interests of justice. As stated in Killian v S
8 the discharge of the onus is a
central consideration in bail applications considered in terms of section 60(11).
Therefore, where the facts are to be determined on paper because of the parties
presenting their cases via affidavits, th en the state’s version must prevail, unless
it is improbable.
[45] Therefore, in my view there is no merit in the criticism that the magistrate
adopted a duplicitous approach to the affidavit presented by Johnson as
compared to the affidavits of the state.
[46] Based on the above legal position, there is also no merit in the ground of appeal
pertaining to the magistrate holding that Johnson’s version that the nurse at
Pollsmoor refused to treat her was improbable and that the nurse had not made
7 page 636, line 18-20
8 [2021] ZAWCHC 100 (24 May 2021); See also S v Kara and Others 2023 (2) SACR 171 (WCC)
a statement to that effect. Similarly , the finding that Johnson had attempted to
mislead the court on this aspect cannot be criticized.
[47] The judgments of the court a quo was criticized for over emphasizing the
possible sentence which could be imposed with regard to the charges faced by
Johnson while not having regard to the right to remain silent and the presumption
of innocence.
9 A further criticism was that the magistrate misdirected in failing to
appreciate that Johnson had given a viva voce explanation in response to the
theft of the motor vehicle which, it was submitted, raised a complete defence and
is reasonably possibly true, thereby rendering the state’s case weak on the
merits.
10
[48] However, section 60(6)(h) of the CPA directs that a court may consider the
nature and gravity of the punishment likely to be imposed. Furthermore, while an
accused person such as Johnson has the right to remain silent, the election to do
so has consequences.
11 When the presumption of innocence is considered
within the context of a challenge to the merits of the state’s case within a bail
application, the accused would have to show on a balance of probabilities that
he/she will be acquitted of the charge.
12
[49] After an evaluation of all the evidence presented in both bail applications, I am
not convinced that Johnson has demonstrated that she would, on a balance of
probabilities, be acquitted of the theft of a motor vehicle charge. As conceded by
her counsel during the hearing, Johnson deceived Tracker more than once and
she lied to the police. Furthermore, her version pertaining to the theft of the
9 This was a ground of appeal against the first bail judgment.
10 This was a ground of appeal against the bail judgment in respect of new facts.
11 S v Boesak 2001 (1) SA 912 (CC)- If there is evidence which calls for an answer and an accused elects
to remain silent, the court may be entitled to conclude that the evidence in the absence of an explanation,
was sufficient to establish guilt.
12 Mathebula v The State (431/09) [2009] ZASCA 91 (11 September 2009)
motor vehicle theft set out in her affidavit deposed to in support of the first bail
differed substantially from her version presented in the vive voce evidence
[50] I turn now to the bail application based on new facts.
New facts bail application
[51] It has been held that new facts are facts which should be discovered after the
bail application was heard and cannot merely be an elaboration of facts
presented in the first bail application.13
[52] When considering a bail application brought on new fact s, the court must be
satisfied that the facts are new and relevant to the determination of bail. 14 A
renewed application based on new facts should be properly referenced with
those facts which were placed before the court in the first instance.15
[53] During November 2023, Johnson instituted a second bail application based on
new facts. These new facts were:
(i) Johnson’s daughter’s health who suffered a suspected burst ovarian cyst
and who, the court was informed, suffers from depression and anxiety
mainly because of her mother’s incarceration
16;
(ii) the events pertaining to the Sorbet franchises17; and
(iii) the events pertaining to John Ramsay Service Station18.
[54] After the bail application based on new facts was refused, Johnson amended her
Notice of Appeal to include the grounds set out below:
13 Davis and Another v S (unreported KZDLD case no 2888/2015, 8 May 2025); S v Petersen 2008 (2)
SACR 355 (C)
14 S v Petersen at [57]
15 2019 (2) SACR 207 (ECG) at 7
16 page 781, line 10
17 page 781, line 15
1818 page 781, line 23
[55] After the judgment of 16 January 2024 refusing the bail application based on new
facts, Johnson amended her Notice of Appeal to add further grounds of appeal
which included the misdirection by the magistrate:
(i) in rejecting the viva voce evidence of Johnson regarding the health of her
daughter in circumstances where it was admissible and uncontested by
the state;
(ii) in not appreciating that the new facts such as the failure of the Sorbet
franchises came to Johnson’s attention after her first bail application;
(iii) by not attaching proper weight attached to the viva voce evidence of
Johnson when compared to that attached to the evidence of the state; and
(iv) failing to appreciate that Johnson gave a viva voce explanation to the
charge of theft which raised a complete defence and is reasonably
possibly true, rendering the state’s case weak on the merits.
[56] I deal firstly with the ground that the magistrate misdirected by failing to attach
proper weight to the viva voce evidence of Johnson and attaching too much
weight to the affidavit submitted by the state. This ground of appeal fails to take
cognizance of the fact that Johnson was clothed with the task of showing that her
release was in the interest of justice and that the state was not required to meet
vive voce evidence with vive voce evidence.
19 Furthermore, the court found that
Johnson had on numerous and on material aspects contradicted herself and was
adjusting her evidence as she went along. This negative finding undoubtedly
impacted on the evidentiary weight attached to Johnson’s evidence where it was
not corroborated.
20
19 S v Viljoen (286/2002) [2002] ZASCA 81
20 page 1049, line 13
[57] I turn now to the issue of the health of Johnson’s daughter. Johnson testified that
her daughter was 15 years old and in grade 9 at the A […] I[…] School of C […]
T[…].
[58] On 27 November 2023, Johnson’s daughter visited her in prison. Johnson could
see that her daughter had lost a lot of weight and asked her what was going on.
Her daughter told her that for the last two weeks she had trouble eating and
keeping her food down. Johnson cut the visit short and asked her mother to take
her daughter to hospital. It was then that they discovered that Johnson’s
daughter has ovarian cysts.
[59] When her daughter visited her at a later occasion, Johnson was informed that the
ovarian cysts were growing and that her daughter may require an operation in
January 2024.
[60] Johnson testified that her daughter was always an anxious girl but that she never
had panic attacks the way she is having which requires her mother to fetch her
daily from school.
[61] Johnson also testified that her daughter missed 18 days of school. However, it
appears from the record that these 18 days were missed not as a result of the
daughter’s anxiety but rather as a result of the need to recuperate from her
treatment for cysts.
[62] Furthermore, Johnson testified that her daughter always had digestive problems
which she treated. She also testified that her daughter is not well and that she is
isolating herself in her room and does not talk much. Johnson testified that she
has not seen her daughter’s anxiety manifest to extent it was.
[63] During cross-examination by the state, Johnson confirmed that her daughter had
always been an anxious child but has never been diagnosed with anxiety.
Although her daughter had been taken to Kingsbury hospital for a panic attack
she had at school, Johnson was not able to tell the court what the reason for the
panic attack was.
21
[64] In evaluating the evidence pertaining to Johnson’s daughter, the magistrate
found that to qualify as a new fact, no health problems must have excised prior to
the applicant being denied bail. Furthermore, the court had to consider the facts
that had been placed before the court in the initial bail application as well as the
new facts should be considered together.
[65] The court a quo correctly noted that although her daughter had always been
anxious, Johnson did not testify to this in her initial bail application. Furthermore,
it was also not mentioned in the social worker’s report or during the address of
her legal counsel. On the contrary, the court referenced the social worker's
report that recorded that both children were able bodied individuals with no
physical or mental disability, with no health issues reported during the
consultation.
[66] The court correctly highlighted that Johnson’s da ughter did not even remotely
indicate to the social worker that she suffers from anxiety or any kind of mental
illness.
[67] Whilst the mental aspects of Johnson’s daughter’s health were questioned, it was
accepted that she suffered health issues in respect of her ovarian cysts.
Therefore, the court could not be faulted if it had to find that Johnson’s daughter’s
mental health issues were fabricated or did not constitute new facts. However,
21 page 850, line 25- page 851, line 6
the magistrate went further and found that Johnson had fabricated her daughter’s
health issues.
[68] In her affidavit deposed to in support of her first bail application, Johnson stated
that:
’17. I am the senior person in all my businesses and solely responsible for the
day to day running of the businesses. I do not trust anyone to run the
businesses and have not as result empowered anyone to be able to run
the businesses. Without me the businesses will fail.’
[69] In the application based on new facts, Johnson testified that her Sorbet franchise
stores are going down and that the manager who was appointed was stealing.
[70] Johnson was also informed that Sorbet Man (Pty) Ltd was cancelling the
franchise agreements with her in respect of her two stores. This cancellation
was caused by Johnson’s breach of clause 20.2.23 of the franchise agreement
as she had been absent from the business for a period in excess of 30 days. In
opposing the bail application based on new facts, the investigating officer
deposed to an affidavit wherein he states that he spoke with Matthew Welz
(‘Welz’), who is the head of legal and the Sorbet Company Secretary. Welz
informed the investigating officer that the release of Johnson on bail would not
affect the termination of the franchise agreements.
[71] As seen from the paragraph 62 above, Johnson predicted that her business es
would fail without her as she had not empowered any one to take over the day to
day running thereof. The resultant failure of the Sorbet stores was a fulfillment of
this expectation. It is not, in my view, new facts. If Johnson had not believed the
truth of this prediction (the failure of her businesses) , then the question must be
posed why she made such a statement in her affidavit in the first instance.
[72] However, even if I am incorrect on this aspect, I fail to see how the termination of
the Sorbet franchise agreements would constitute new facts that are relevant to
the bail application. Moreso, as the evidence is that Johnson’s release on bail
would not impact on this termination.
[73] Furthermore, the position pertaining to the termination of the Sorbet stores would
remain the same if Johnson was released on bail with conditions which
prevented her from physically attending at the Sorbet stores as it would result in
the continued breach of the franchise agreement . Therefore, it had not been
shown that the release of Johnson on bail would have any impact on the
termination of the franchise agreements.
[74] Similarly, in respect of the petrol station – the fulfillment of the predicament that
her business will fail without her, is not, in my view, a new fact.
[75] Furthermore, i t is clear from the letter dated 24 October 2023 and which
addresses Johnson’s breach of the Retail and Supply Agreement concluded
between John Ramsay Service Station CC and MBT Petroleum (Pty) Ltd that the
breach was caused by Johnson’s unlawful cessation of business operations prior
to 13 October 2023.
[76] In S v Petersen 22 a full bench found that the appeal court should be at liberty to
undertake its own analysis of the evidence in considering whether the appellant
discharged the onus in terms of s60(11)(a) of the CPA.
[77] I turn now to analyzing the evidence presented.
[78] I consider firstly whether there is a likelihood that if Johnson were to be released
on bail, she would endanger the safety of the public, any person against whom
22 2008 (2) SACR 355 (C)
the offence in question was allegedly committed, or any other particular person
or will commit a Schedule 1 offence.
[79] Johnson’s own evidence shows that when she realised that one of her
employees had stolen a large amount of money from her she elected not to
report the theft to the police but rather to launch a manhunt to track him down.
Johnson’s first reaction was not to call the police but to take the law into her own
hands. She intentionally deceived tracker by repeatedly pretending to be Kelly
Stuurman in order that she could locate the whereabouts of the BMW motor
vehicle which is the subject matter of the theft charge.
[80] During argument it was submitted that Johnson had Kelly Stuurman’s permission
to contact Tracker and to locate the vehicle. This argument is inconsistent with
Johnson’s evidence as she pertinently states that ‘...I would also like to put on
record that phone call was made to Tracker was right before I spoke to Kelly
Stuurman regarding what is happening at work with the money.’
23
[81] In defending her deception of Tracker, Johnson states that ‘I had – in my best
ability at the moment I did what I needed to do.’ 24 The employee was missing
with her money and the car, and she would do whatever was necessary to get it
back, which she felt she was entitled to do.25
[82] The above evidence shows that Johnson resented the employee who stole from
her and felt that she was entitled to- in her words - do what she had to do, which
evidently included taking the law into her own hands.
[83] In light of the above, I am of the view that there is a likelihood that, if released on
bail, Johnson would endanger the safety of the public , and any person against
23 page 893, line 15
24 page 897
25 page 906, line 1
whom the offence in question was allegedly committed, or any other particular
person or will commit a Schedule 1 offence.
[84] In considering whether there is a likelihood that Johnson, if she was released on
bail, would attempt to evade her trial, regard must be had to her dishonesty
pertaining to her income.
[85] As conceded by her counsel during the hearing of the appeal, Johnson was not
honest in disclosing her monthly income of R70 000 she received from Ayepep.
Johnson’s evidence on this aspect was very confusing, intentionally so, in my
view to muddy the waters pertaining thereto. 26 In her affidavit deposed to in
support of her first bail application, Johnson states that her average monthly
income in the most recent financial year was R97 100.00. She does not disclose
any income she received from Ayepep. Johnson proceeds to blame this
omission on Mr Guma, who remains her attorney and her accountant.
[86] Not only did Johnson not disclose her salary income she received from Ayepep,
but she also failed to disclose the loan repayments which she received.
[87] The undisclosed income which included the loan repayments received by
Johnson would have eased any discomfort she may have suffered if she chose
to forfeit the monies paid in respect of bail, thereby increasing the likelihood
thereof.
[88] As set out above, Johnson, if convicted is facing a minimum sentence of 15
years in the absence of substantial and compelling circumstances. In light of the
audio recording pertaining to the telephone conversation with Tracker and the
video evidence, it cannot be said that the state had a weak case against her.
26 page 858, line 3
[89] Johnson also considered applying for business residency in Dubai. She did not
disclose this information, even though she deemed it appropriate to disclose that
she had years ago considered relocating to Gauteng. Even though nothing came
from this, she had been in contact with a person would have assisted with the
residency applications as recently as 27 March 2023. This contact could have
provided her with the means of applying for residency in Dubai, if needed.
[90] Therefore, there is a likelihood that she could attempt to evade her trial if she
were to be released on bail as she had the necessary contacts to establish
residency in Dubai and had the financial means to do so.
[91] Johnson is clearly acquainted with and knows Kelly Stuurman and her boyfriend,
the complainant in the motor vehicle theft. As one of the charges pertained to
the theft of the motor vehicle which, in Johnson’s own words - was owned by
Kelly Stuurman, and which was unlawfully towed and removed as a result of
Johnson’s intervention and actions, she must have known that they would be
witnesses against her at least in respect of the theft the motor vehicle theft. This
is common sense. Further, Johnson is not an ordinary lay person completely
ignorant of the law but was busy with completing her LLB degree.
[92] In her affidavit, Johnson unequivocally denies making a misrepresentation to
anyone and denies that she provided false information to the police before or
after her arrest. The evidence presented in the bail application based on new
facts showed these statements to be false. Prior to her arrest, Johnson told the
police that she was the owner of the BMW to persuade them to allow her to
remove it after it was located by deceptive means . She also mispresented to
Tracker that she was Kelly Stuurman , the registered owner of the BMW . This
much was conceded by her counsel during the hearing of the appeal.
[93] Furthermore, she was also dishonest when she stated in her affidavit that the
petrol price at her petrol station had not been changed. This was proven to be a
lie when the petrol station was visited by the investigating officer. When it was
disclosed in open court that the police would further their investigation by visiting
the petrol station, it was mysteriously closed thereby preventing this
investigation. Although Johnson denied that she closed the petrol station, she
stated that she is the only person who operates it as she has not empowered any
other person to do so. Furthermore, she would be the only person to benefit
from the closure of the petrol station.
[94] Therefore, I find that there is a likelihood that if Johnson was released on bail,
she would attempt to influence or intimidate witnesses or to conceal or destroy
evidence.
[95] In her affidavit, Johnson states that:
‘23. ... Her boyfriend, who also was an employee of mine stole a vast amount of
money from my business and defrauded a business partner. When I found
this out and confronted him, he fled and switched off his phone. I have not
spoken to either of them since then and do not know their whereabouts.’ and
‘28. ... In fact, I have not even touched the vehicle.’
[96] The evidence presented in the bail application brought on new facts shows that
the above quoted contents of her affidavit w ere false. On the contrary, Johnson
remained in contact with Stuurman, was proactive in locating the vehicle and
having it removed.
[97] A holistic analysis of the evidence portrays Johnson as a person who does what
she needs to even if this means being deceptive and taking the law into her own
hands. She does not hesitate to lie and give false evidence, if she thinks it will
benefit her. Such a person does not respect the legal system and would not
hesitate to undermine the criminal justice system, including the bail system.
[98] In summation, Johnson unapologetically took the law into her own hands, was
dishonest to the SAPS and Tracker, failed to disclose that she was considering
applying for residency (albeit business residency) in Dubai and her subsequent
communication pertaining thereto, failed to disclose the full extent of her income
and was dishonest in the evidence she presented to court in applying for bail.
[99] In light of the above, Johnson has not discharged her onus to show that it would
be in the interests of justice that she be released on bail. Therefore, the bail
appeal is dismissed.
Slingers J
13 May 2024