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2024
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[2024] ZANCHC 94
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Saul v S (Reasons) (CA&R 67/2023) [2024] ZANCHC 94 (13 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: CA&R 67/2023
Date heard: 07-03-2024
Date delivered:
13-03-2024
In
the matter between:
WALTER
MORATIWA SAUL
Appellant
and
THE
STATE
Respondent
CORAM:
WILLIAMS J:
REASONS FOR JUDGMENT
WILLIAMS
J:
1.
On 7 March
2024 I made an order, agreed to between Mr Nel for the appellant
and Ms Engelbrecht for the respondent, in the following terms:
“
1.
The decision of the trial court to refuse bail to the Appellant
pending his trial is herewith set aside and
replaced with the
following order:
2.
Bail
is granted to the Appellant in the amount of R5000.00 on the
following conditions:
(a)
That
he attends all court appearances.
(b)
That
he resides at his grandparents’ house in Rietfontein and if he
wants to change his place of residence, he must inform
the
investigating officer, Sergeant Moseme, in writing of the new address
seven (7) days prior to his relocation.
(c)
That
he refrains from visiting the premises of M[...] S[...] School.
(d)
That
he does not make any contact, directly or indirectly, with any of the
State witnesses whose names appear on the list that the
investigating
officer will file on him.”
2.
My reasons for the order follow herewith.
3.
The
appellant was arrested on a charge of the contravention of s15 of Act
32 of 2007, an act of consensual sexual penetration with
a child
under 16 years of age, also known as statutory rape.
4.
At the bail
application held in the Magistrates Court, Jan Kempdorp, the
prosecutor submitted that the offence resorted under Schedule
6 of
the Criminal Procedure Act (the CPA). The appellant’s
attorney agreed with the submission and the magistrate simply
accepted it as being the position. Schedule 6 however
specifically provides for rape or compelled rape as envisaged in s3
or s4 of the Criminal Law (sexual and related matters) Amendment Act
2007, in the circumstances listed in the schedule. Sections
3
and 4 of the aforementioned Act relate to acts of non-consensual
sexual penetration.
5.
Statutory
rape does therefore not resort under Schedule 6. Counsel
appearing before me have submitted that the court
a
quo
should
have disposed of the bail application under Schedule 1 of the CPA
which includes
inter
alia
:
“
Any offence,
except the offence of escaping from lawful custody in circumstances
other than circumstances referred to immediately
hereunder, the
punishment wherefor may be a period of imprisonment exceeding six
months, without the option of a fine.”
I agree with the
submission.
6.
The
consequence of the incorrect categorization of the offence resulted
in the appellant’s bail application being dealt with
in terms
of the provisions of s(60)(11)(a) of the CPA which places the onus on
an accused to convince the court that there are
exceptional
circumstances which permit his/her release in the interests of
justice. In the result the court
a
quo
held after hearing the evidence of the appellant, his witness Mr
Moncho and Sergeant Nhlathi who stood in for the investigating
officer, that the appellant had failed to show exceptional
circumstances and that it was therefore not in the interests of
justice to release him on bail.
7.
There can
be no doubt that the court
a
quo’s
failure to deal with the bail application on the basis that the
offence was one falling under Schedule 1, was irregular.
8.
S65 (4) of
the CPA which deals with the powers of the court in bail appeals
provides as follows:
“
(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.”
I therefore have to
consider whether the interests of justice permits the appellant’s
release on bail.
9.
S60(4) sets
out the instances where it would not be in the interests of justice
to release an accused on bail as follow:
“
(4)
The interests of justice do not permit the release from detention of
an accused where one or more of
the following grounds are
established:
(a)
Where
there is the likelihood that the accused, if he or she were released
on bail, will endanger the safety of the public 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 is the likelihood that the accused, if he or she were
released on bail, will attempt
to influence or intimidate witnesses
or to conceal or destroy evidence; or
(d)
where there if the likelihood that the accused if he or she were
released on bail, will undermine
or jeopardise the objectives of 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;”
10.
I now turn
to the facts of the matter.
The
appellant is a 45 year old educator at the same school where the
victim is a female learner, aged 14. He has subsequent
to his
arrest been suspended with full remuneration on conditions
inter
alia
that he refrains from entering the school and that he is
prohibited from making contact with any employee, educator, learner
or
any person attached to the school.
11.
The
conditions of the appellant’s suspension already in part
address the likelihood that he would attempt to influence or
intimidate witnesses. There was in any event no evidence to
this effect.
12.
The
investigation at the scene where the alleged offence took place has
been completed and there can be no likelihood of the concealment
or
destruction of evidence should the appellant be released on bail.
13.
The
appellant has family and dependents within this jurisdiction and a
fixed residence. When he was informed of the complaint,
he
voluntarily handed himself over to the police. In these
circumstances a likelihood to evade trial or to abscond has not
been
shown.
14.
The
likelihood of any of the events referred to in s60 (4) (a), (d) and
(e) has not been addressed by the State in the bail application
and
therefore has no relevance to the issue at hand.
15.
In the
circumstance I was of the view that the interests of justice dictate
that the appellant be released on bail on the conditions
as agreed to
by the parties, hence the order made.
C C WILLIAMS
JUDGE
For
Appellant:
Adv.
I
Nel
CM
De Bruyn & Partners
For
Respondent:
Adv.
M Engelbrecht
Office
of the DPP