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2024
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[2024] ZAECMKHC 69
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Davies v S (CA&R 103/2024) [2024] ZAECMKHC 69 (19 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CA&R 103/2024
In
the matter between:
DORIAN
DAVIES
Appellant
and
THE
STATE
Respondent
JUDGMENT
LAING
J
[1]
This is an appeal against the decision of the district court in
Somerset East to refuse bail to the appellant, who has
been charged
with dealing in drugs, alternatively using or being in possession of
drugs.
Background
[2]
It was common cause that, on 29 February 2024, members of the South
African Police Services stopped a Nissan NP200
bakkie
along
the N10 national road in the vicinity of Cookhouse. The appellant was
driving the motor vehicle at the time, accompanied
by a Mr Julius
Menziwa. A police search led to the discovery of a large quantity of
Mandrax tablets and a sachet of ‘Tik’.
The two suspects
denied any knowledge of the drugs but were arrested and taken to the
police station at Cookhouse, where they were
placed in detention. A
body search of Mr Menziwa led to the discovery of further drugs.
In
the court
a quo
[3]
At the bail application in the court
a quo
, the appellant’s
legal representative presented an affidavit in lieu of testifying. He
stated that he was 41-years old and
had been residing at his current
address in Somerset East for six years. He was a South African
citizen; he had no passport. The
appellant was married with five
children, ranging from 19 to four years in age. He was self-employed
and was an events organizer,
earning about R7,500 per month. He had
no previous convictions and there were no cases pending against him.
Regarding the offence,
the appellant stated that he was unaware that
there had been drugs hidden in the motor vehicle. He was able to pay
R5,000 for bail.
[4]
Mr Menziwa testified in support of his application. He alleged that
he did not know the appellant and met him for the
first time when he
hitched a lift from him along the route in question. He did not know
how the drugs came to be hidden in the
motor vehicle. He conceded
that he had numerous previous convictions, mostly pertaining to
dealing in drugs; there was also a case
still pending against him.
[5]
The state presented a petition that had allegedly been submitted by
the communities residing in the Somerset East district,
calling for
the support of the magistracy and emphasizing that no bail should be
granted to anyone accused of drug-related offences.
There were 786
signatures on the petition.
[6]
A police officer attached to a drug-related crime unit and with
considerable experience of policing in this area submitted
an
affidavit stating that the value of the Mandrax and ‘Tik’
found in the motor vehicle was approximately R148,000.
The drugs
found in Mr Menziwa’s possession were valued at approximately
R115,000. The investigating officer, Capt Malunga
Mvulazi, also
submitted an affidavit. He asserted, with reference to sections
60(4)(a) and (e) of the Criminal Procedure Act 51
of 1977 (‘CPA’),
that it would not be in the interests of justice for bail to be
granted to the appellant. Capt Mvulazi
confirmed the personal details
of the appellant; he admitted that the appellant was not a flight
risk. He went on to describe the
circumstances of the search of the
motor vehicle, the arrest of the appellant and Mr Menziwa, and their
subsequent detention.
[7]
The state then called a member of the community, Ms Susan Martins,
who testified about the impact of drugs on her 25-year-old
son and
her family in general. She explained that her son’s drug
addiction had almost destroyed her family and had caused
considerable
suffering. She said that drug use was very widespread in Somerset
East.
[8]
The previous witness, Capt Mvulazi, was recalled. He testified that
the motor vehicle driven by the appellant was registered
in the name
of ABSA Bank; the accompanying ID number belonged to neither the
appellant nor Mr Menziwa but to someone residing in
Randburg,
Gauteng.
Judgment
of the magistrate
[9]
In his judgment, the magistrate observed that a person’s right
to liberty and freedom was constitutionally entrenched.
It was,
however, also subject to limitations. The magistrate went on to
acknowledge the petition that the state had presented but
reiterated
that a court should not be swayed by public opinion. He remarked that
the time taken for the finalization of the laboratory
reports
regarding the drugs could not be used as a basis for granting bail
and emphasized the prevalence of drug-related cases
on the court
roll. The magistrate held that it was necessary for the court to
consider public opinion and the effect that drug
use had on a
community; if the court did not act decisively then the community
would take the law into their own hands, anarchy
would result. There
would be no trust in the criminal justice system. The appellant was
found in possession of a large quantity
of drugs; this and the
prevalence of drug use in the Somerset East district persuaded the
magistrate that it would not be in the
interests of justice to grant
bail to the appellant.
Basis
for appeal
[10]
On appeal, the appellant listed several grounds. He contended that
the magistrate failed to consider,
inter alia
: the appellant’s
personal circumstances and the effect that his continued detention
would have on the wellbeing of his children;
that the appellant has a
permanent address, which was verified by the investigating officer;
that he was not a flight risk; that
he has no previous convictions.
There was no evidence that the appellant had previously undermined or
jeopardized the functioning
of the criminal justice system. Suitable
bail conditions could have been imposed to address any reservations
that the magistrate
had held about the appellant’s release.
[11]
The above grounds constitute, very broadly, the issues to be decided
in the present matter. A brief overview of the applicable
principles
follows.
Legal
framework
[12]
The starting point is section 65(4) of the CPA, which stipulates that
the decision against which an appeal is brought
shall not be set
aside unless a judge is satisfied that the decision was wrong, in
which event the judge shall give the decision
which, in his or her
opinion, the court
a quo
should have given. The catalyst for
the appeal court’s intervention is its finding that the
decision of the court
a quo
was incorrect.
[13]
It was common cause that the offence with which the appellant was
charged fell under Schedule 5 of the CPA. This attracted
the test set
out in section 60(11)(b). In other words, the appellant must continue
to be detained in custody unless he adduces
evidence which satisfies
the court that the interests of justice permit his release. The
provisions of section 60(4), however,
indicate that the interests of
justice do not permit the release of the appellant where one or more
of the grounds listed in sub-sections
(a) to (e) is or are
established. They comprise a set of ‘likelihoods’. A
court may consider the factors listed under
sections 60(5) to (8A)
for purposes of determining whether the grounds or ‘likelihoods’
have been established. Finally,
the court must decide the matter by
weighing up the interests of justice, which include the safety of the
person against whom the
offence was allegedly committed, against the
right of the appellant to his personal freedom, as envisaged under
sections 60(9)
and (10).
[14]
The above principles provide a legislative framework for the
decision. The application thereof to the facts of the matter
follows.
Discussion
[15]
The
appellant bore the onus of satisfying the court
a
quo
that the interests of justice permitted his release. It is helpful to
refer to the decision of the Constitutional Court in
S
v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat
,
[1]
where Kriegler J held:
‘…
the basic
enquiry remains to ascertain where the interests of justice lie. In
deciding whether the interests of justice permit the
release on bail
of an awaiting trial prisoner, the court is advised to look to the
five broad considerations mentioned in para’s
(a) to (e) of
sub-s (4), as detailed in the succeeding subsections. And it then has
to do the final weighing up of factors for
and against bail as
required by sub-ss (9) and (10). 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.’
[2]
[16]
In the present matter, the state relied on the grounds or likelihoods
in sections 60(4)(a) and (e) to oppose the granting
of bail. These
must be considered further.
[17]
It seems that, regarding section 60(4)(a), the state based its case
on the likelihood that the appellant would endanger
the safety of the
public. None of the factors listed in section 60(5) were addressed,
save for the prevalence of the offence in
the Somerset East district.
The magistrate appeared to have been swayed, considerably, by the
petition presented by the state,
as well as Ms Martins’s
testimony. Neither, however, carried much, if any, evidential value.
The petition was directed at
drug-related offences in general, Ms
Martins’s testimony pertained to the destructive impact of drug
use on her son and her
wider family; the appellant was not implicated
directly. In his affidavit, the appellant asserted that he was
unaware that drugs
had been hidden inside the motor vehicle and
received ‘the shock of my life’ when the police made the
discovery. This
was not disputed by the state. Furthermore, no drugs
were found on the appellant; Capt Mvulazi testified that the police
had not
been able to trace the ownership of the motor vehicle to him;
Mr Menziwa (previously convicted of drug-related offences) stated
that he did not know the appellant; and the appellant had no previous
convictions or cases pending against him to suggest that
he was
implicated in the offence. Although these aspects will need to be
tested properly at trial, there was, quite simply, no
evidence in the
court
a quo
that the appellant would endanger the safety of
the public. The requirements of section 60(4)(a) were not met.
[18]
Turning to
section 60(4)(e), read with section 60(8A), it is necessary to refer
to
S v
Schietekat
,
[3]
where Slomowitz AJ observed, regarding the relevant factors, that:
‘…
[the
factors] are no more than an expression, in statutory form, of what
amounts to lynch law. It is true to say that it is the
duty of courts
of law to ensure the maintenance of law, order and justice and so
prevent the greatest of evils, a criminal justice
system so weak and
vacillating that people feel the need to avoid the courts and take
the law into their own hands. Despite this
courts have a greater
obligation to society at large. They must jealously guard the rule of
law. That is the lesson of this century.
A court of law must not
permit the body politic to give legislative credibility, for whatever
reason, to uninformed or ignorant
public outcry, or to what the
government of the day perceives will best assuage those feelings of
the general public which, if
quelled, are calculated to do no more
than to ensure that it be returned to elected office, whether it
deserves to be or not.’
[4]
[19]
Importantly, section 60(4)(e) qualifies the ground that, if
established, would prevent the release of the appellant in
the
interests of justice. There may well be a likelihood that the release
of the appellant would disturb the public order or undermine
public
peace or security, but this can only be invoked in exceptional
circumstances. There is no similar qualification attached
to the
preceding grounds that are listed in sections 60(4)(a) to (d),
indicating that the legislature intended the ground listed
in
sub-section (e) to be treated with great care and circumspection. At
the least, the state would need to present evidence of
such
exceptional circumstances.
[20]
The magistrate appears to have been motivated by a concern that, if
the court
a quo
did not act decisively, then the community
would take the law into their own hands, leading to anarchy; the
community would lose
trust in the criminal justice system. There was,
however, no evidence at all to that effect. The petition and Ms
Martins’s
testimony clearly painted a picture of a community
beset by a serious and hugely destructive societal problem, but there
was nothing
to demonstrate that the appellant himself would disturb
the public order or undermine public peace or security if released
from
detention. There was, critically, no evidence of any exceptional
circumstances that would have allowed the state to have invoked
section 60(4)(e). Consequently, it cannot be said that the
requirements thereof were met.
[21]
Finally, it is apparent from the judgment that the magistrate did not
undertake the exercise contemplated in terms of
sections 60(9) and
(10) by weighing up the interests of justice against the appellant’s
right to his personal freedom. To
that effect, little, if any,
consideration was given to the fact that the appellant is married,
has five children (all but one
being minors), and is self-employed.
His continued detention would have a serious impact on the welfare of
his family and his business.
These factors were simply never
investigated.
Relief
and order
[22]
Having regard to the record and to the argument made by the
respective counsel, the court is satisfied that the interests
of
justice permit the release of the appellant from detention. Strict
conditions, as discussed with counsel, must, however, be
attached to
the bail to be granted.
[23]
The following order is made:
1.
The appeal succeeds and the order of the
court
a quo
is set aside.
2.
The appellant is released from detention,
subject to the conditions that follow. The appellant is required to:
(a)
pay bail in the amount of R5,000;
(b)
report in person to the officer in charge
at any time between 06h00 and 18h00, Mondays and Thursdays, at the
Somerset East police
station;
(c)
notify the investigating officer at least
48 hours’ prior to his intended departure from the district of
Somerset East for
work or any other reasons;
(d)
have no contact whatsoever with any persons
previously convicted of drug-related offences or reasonably suspected
of being involved
therewith, pending the finalization of the trial;
(e)
not to intimidate, harass, or interfere
with state witnesses; and
(f)
to appear personally at trial and at such
time, date, and place to which the proceedings might be adjourned.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCES
For the
appellant:
Mr Mgangatho
Instructed
by:
Mgangatho Attorneys
7
Somerset Street
Makhanda
6139
For the
respondent:
Adv Mgenge
Instructed
by:
Director of Public Prosecutions
High
Street
Makhanda
6140
Date of
hearing:
19 June 2024
Date of delivery of
judgment: 19 June 2024
[1]
[1999] ZACC 8
;
1999 (2) SACR 51
(CC).
[2]
At paragraph [49].
[3]
1999 (1) SACR 100 (C).
[4]
At 104h-j.