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2024
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[2024] ZAFSHC 313
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M.T v S (A148/2024) [2024] ZAFSHC 313 (20 September 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Appeal
case no:
A148/2024
Magistrate’s
court case no:
20/553/2024
In
the matter between:
M[…]
T[…]
and
THE STATE
Appellant
Respondent
Neutral
citation: XXX
Coram:
Cronje, AJ
Heard:
13 September 2024
Delivered:
20 September 2024
Summary
:
Bail – appeal against dismissal of application of bail in
magistrate’s court – two counts of rape of biological
daughter – Schedule 6 offence – appellant submitting
written affidavit setting out factors justifying his release on
bail
– on the strength of deficient investigating officer’s
statement, the state does not oppose bail – further
statements
and investigation outstanding – magistrate enquiring whether
the state will prove charges – deficiencies
in procedure –
matter remitted back to magistrate’s court for reconsideration.
ORDER
The
matter is remitted to the Bloemfontein Magistrate’s Court
to urgently reconsider the bail application and afford
the
parties an opportunity to address all relevant facts within 10 days
from the date of this judgment.
JUDGMENT
Cronje
AJ
Introduction:
[1]
The appellant appeals against
dismissing his bail application on 26 August 2024 in the magistrate’s
court of Bloemfontein.
[2]
The grounds of appeal are briefly
stated:
2.1
The investigating officer and the prosecutor did not oppose bail. The
court over-emphasises the justice
interest, failing to strike a
proper balance;
2.2
The court failed to take into account that the appellant was presumed
to be innocent;
2.3
The court failed to consider that the appellant had no previous
convictions or pending cases and that
the appellant was not a flight
risk;
2.4
The court failed to consider that the appellant receives a salary he
uses to provide for his children.
If bail is refused, he might lose
his employment;
2.5
The court erred in concluding that the provisions in s 60(4) of the
Criminal Procedure Act, 51 of 1977
[1]
(CPA) had been established. The court failed to consider appropriate
bail conditions as an alternative to denying bail;
2.6
The court failed to properly apply the provisions of Section 60(9) of
the CPA when she weighed the interest
of justice against the personal
circumstances of the appellant, whereas it is required that the
interest of justice be weighed
against the right of the appellant to
his freedom and the prejudice that the appellant may likely suffer if
he was detained;
2.7
The court misdirected itself in finding that the appellant’s
personal circumstances must outweigh
the interest of justice. The
fact that the court found that a
prima facie
case has been
established does not per se justify a refusal of bail; and
2.8
The court ignored the evidence presented by the investigating
officer, the prosecutor, and the appellant.
[3]
The appellant did not propose
bail conditions that may be set.
The
charges of rape
[4]
The
charge sheet provides:
‘
The
accused should be informed that if Section 51(1)(a)(iii) of Act 105
of 1977 is applicable that the court will have a sentencing
jurisdiction set out in Part 1 of Schedule 2, that of life
imprisonment.
(The
accused must be informed that he may be included in the National
Register of Sex Offenders).
RAPE
In
that on or about the _____ 2014 at or near Bloemfontein in the
District of Bloemfontein and within the Regional Division of the
Free
State, the said accused did unlawfully and intentionally commit an
act of sexual penetration with the complainant to wit,
Puleng Mokoena
(+_ 6 yrs) by penetrating her genitally without the consent of the
said complainant and thus raped him/her.’
[5]
It is common cause that the
complainant was younger than 16 years on the first charge and younger
than 18 years on the second charge.
As the biological daughter of the
accused, she was in a domestic relationship as defined in
s 1
of the
Domestic Violence Act 116 of 1998
. The rape in 2014 carries a minimum
sentence of 10 years imprisonment as he was alleged to be a first
offender.
[6]
The second charge reads the same
as the first charge, save to state that the offence was committed in
2023. This offence carries
a minimum sentence of life imprisonment.
The
evidence of the appellant
[7]
The
appellant did not present
viva voce
evidence and submitted an affidavit
supporting his application. The salient averments are that he is 30
years old, a South African
citizen and resides in Phase 2,
Bloemfontein. He exercises his constitutional right not to present
evidence and intends to plead
not guilty against the charges. He is a
mechanic at a construction company in Bloemfontein and earns a salary
of R16 800.00
per month, after deductions. He is married, and
his children are between six and 17. The children rely on him
financially as they
attend a primary and a secondary school. He owns
furniture of R30 000.00 and motor vehicles whose value he could
not state.
Furthermore, he rents an apartment at R2 500.00 per
month. The interest of justice requires that he be released on bail
on
the following grounds. He sends money to his spouse to provide for
his children. He has a fixed address, which was confirmed by
the
state. He has no pending cases against him or any previous
convictions. There were no protection orders against him, and he
cooperated with the police. He has no warrants against him, and he
has strong emotional and family ties in South Africa, and it
is
‘
doubtful
’
that he will evade his trial. He runs the risk of losing his
employment if bail is not granted.
[8]
He
would abide by conditions that the court may set in granting him bail
and would not commit further offences or endanger the safety
of any
particular person. He would also not threaten State witnesses or
inflict harm on such witnesses nor would he interfere in
the State’s
investigation and would be able to pay an amount of R1 000.00 if
he is released on bail. He maintains good
health.
The
evidence of the state
[9]
In
an affidavit in support of a bail application, the investigating
officer, Mr Thabo Mokoena, states that the victim reported that
her
father raped her when she was six years old, and now, on the 13th, he
touched her on the thighs. He states that the appellant
is a first
offender, does not have previous convictions, and the complainant
does not reside with the appellant. The sentence in
the statement is
incomplete, but that appears to be what was intended to be stated. He
confirms that the appellant is not linked
to further charges. The
affidavit is not affirmed but stamped by the court clerk on 4
September 2024.
The
court’s enquiries
[10]
The court enquired about the fact
that the investigating officer’s statement refers to touching
the minor’s thigh, which
does not constitute rape. The
prosecutor thereupon stated that the docket indicated that there were
two counts of rape, and the
touching of the thighs was in addition to
it. The complainant is the appellant's biological daughter. The court
remarked that the
investigating officer's affidavit says nothing but
nevertheless was accepted as exhibit ‘B’. The state did
not present
any further evidence by documentation or
viva
voce
.
[11]
The court enquired from the
prosecutor why the State was not opposing bail as the affidavit did
not inform her of anything. The
prosecutor stated that the address of
the appellant had been confirmed, there was no likelihood that, if
released on bail, he would
endanger the safety of any particular
person, would not reside with the complainant and would request that
a condition be set that
the appellant does not make contact with
witnesses of the complainant. He referred to
s 60(4)
(a)
to
(e)
.
He then stated that the appellant may be released on bail. The
prosecutor noted that the investigating officer's affidavit did
not
solicit enough information and only stated that the appellant no
longer resides with the complainant.
[12]
The court enquired whether a
prima facie case existed on both counts, which the prosecutor
confirmed. The court then asked: ‘If
you will prosecute, will
he get a conviction?’ to which the prosecutor answered: ‘That
is correct, Your Worship, and
apparently he started, she reported
this at school first, to the social worker at school that what has
been happening then this
thing that prompted the complainant just to
speak out is that the last incident, the one that the investigating
officer has mentioned
the issue of touching of thighs, is the one
that prompted the complainant now to speak about the incidents that
happened previously.’
[13]
The court requested that the
prosecutor address the factors in
s 60(6)
(f)
,
(g)
,
(h)
,
as well as 60(7)
(a)
.
The prosecutor stated that the offence was serious and that life
imprisonment was the minimum sentence that ought to be imposed.
The
strength of the State’s case is strong. Regarding
s 60(7)
and
(8), it was confirmed that the appellant is familiar with his
daughter, but it was, at that point, unclear whether there were
any
other witnesses. However, there was a report of the social worker.
Also, a statement from the brother of the complainant was
not yet
obtained, but there is a J.88. An additional statement from the
complainant was outstanding, which would clarify certain
issues.
[14]
The court asked the appellant’s
representative whether he wished to add anything for consideration of
bail. He replied that
the court should consider an amount as a
condition. He submitted that the offer of R1 000.00 should be
reduced to R500.00.
The court was not impressed and stated that ‘How
could a submission be made for payment of R500.00 on two (2) counts
of rape
of his daughter.’ The court considered the ability to
pay as a factor. However, the appellant’s representative was
not allowed to address the issues raised by the magistrate with the
prosecutor.
The
magistrate’s judgment
[15]
The magistrate found that the
basis of the application was mainly financial. He may lose his
employment, and his family may suffer.
The state does not oppose
bail; he does not have previous convictions; there are no pending
cases against him, and the State does
not believe that he would
interfere with witnesses.
Section 60(10)
of the CPA places an
obligation on the court to, notwithstanding that the State is not
opposing bail, weigh up the personal interest
of the appellant
against the interest of justice, which includes the safety of any
person against whom the offence was committed.
The appellant
allegedly raped his minor daughter twice and is known to his
daughter. The offences constitute gender-based violence
against his
biological daughter within a domestic relationship.
[16]
The state has a strong (
prima
facie
) case against the appellant,
and he may be sentenced to life imprisonment upon conviction. The
magistrate concluded that considering
s 60(6)
(f)
,
(g)
and
(h)
and
7
(a)
and
(b)
and having considered all factors, there are no exceptional
circumstances for the appellant to be released on bail and bail was
refused.
Evaluation
[17]
Mr
Thebe relies on the principle that all persons are deemed innocent
until proven guilty.
[2]
[18]
In
S
v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat
[3]
the
proper approach in bail applications was stated as follows:
‘
Furthermore,
a bail hearing is a unique judicial function. It is obvious that the
peculiar requirements of bail as an interlocutory
and inherently
urgent step were kept in mind when the statute was drafted. Although
it is intended to be a formal court procedure,
it is considerably
less formal than a trial. Thus the evidentiary material proffered
need not comply with the strict rules of oral
or written evidence.
Also, although bail, like the trial, is essentially adversarial, the
inquisitorial powers of the presiding
officer are greater.
An
important point to note about the bail proceedings is so self-evident
that it is often overlooked. It is that there is a fundamental
difference between the objective of bail proceedings and that of the
trial. In a bail application the enquiry is not really concerned
with
the question of guilt. That is the task of the trial court. The court
hearing the bail application is concerned with the question
of
possible guilt only to the extent that it may bear on where the
interests of justice lie in regards to bail. The focus at the
bail
stage is to decide whether the interests of justice permit the
release of the accused pending trial; and that entails, in
the main,
protecting the investigation and prosecution of the case against
hindrance
.’
[4]
(Footnote
omitted.) (Own emphasis.)
[19]
In
Moola
v S
[5]
(
Moola
)
the granting of bail with reference to the seriousness of the charge
of rape and sexual assault was stated as follows:
‘
The
charge of rape of a minor child is serious and a term of life
imprisonment shall be imposed unless substantial and compelling
circumstances are present. In addition, there is an outcry in the
community in respect to gender based violence crimes. The fact
that
the appellant states this matter is in respect to his daughter does
not lessen the crime. A nine-year-old child cannot protect
herself
against the advances of an adult man. In addition, according to the
complainant’s version, she was told by the appellant
not to
mention anything that had happened.
[6]
The
strength of a case against an accused and the nature and gravity of
punishment which is likely to be imposed are some of the
grounds
which, in terms of s 60(6) of the Act, a court should consider in
determining whether there is a likelihood of an appellant
evading
trial. In South Africa domestic disputes are rife and our country is
engulfed with gender based violence. Such actions
of the appellant
need to be carefully considered before releasing him on bail.
[7]
Due
to the fact that the main consideration for the court in applications
of this nature is the increased risk of the appellant
absconding,
such risk was not emphasised by the respondent in the Court
a
quo
.
This is extremely strange to this Court in light of all the time that
the appellant was in South Africa but never handed himself
over to
the police.’
[8]
[20]
The appellant,
in the instant bail appeal, alleged that he cooperated with the
police.
[21]
Some of the
concerns raised in
Moola
were that neither the investigating officer nor the prosecutor
opposed the bail application. The complainant was nine years
old when
she made her statement. There was no statement from the complainant’s
mother.
[22]
In
Motsi
v S
[9]
it
was emphasised that the court must be informed of all relevant and
substantial facts:
‘
The
State is required to put all the necessary and relevant substantial
facts before the court for the purposes of upholding the
right of a
bail applicant to be apprised of the case which he faces, in the bail
application. This will enhance the impartiality
of the courts and
their independence in exercising their judicial functions
.
It also adds to the flavor of bail proceedings being
sui
generis
.
A bail application is unique and special. Its inquisitorial
characteristic is one manifestation. In my view, the other
manifestation
of its unique and special character are that the
interests of justice demands that the State begin and apprise the
applicant and
the Court of the case which the applicant has to face,
especially in section 60(11) proceedings where the so-called reverse
onus
is found. The further manifestation is that the applicant bears
the onus to satisfy the court on a balance of probabilities that
the
interests of justice do not require their detention [
S
v Branco
2002(1)
SACR 531 (W) at 532E-G].
The
onus on the applicant and the State bearing the duty to begin and
adequately inform the court of the substantial facts, are
not
mutually exclusive in a unique procedure specifically designed to
administer justice
.’
[10]
(Own
emphasis.)
[23]
Two of the
most concerning issues that emanate from the bail application is that
notwithstanding the seriousness of the alleged
crimes and the public
outcry when bail is granted for these offences, they abdicated their
duty to place all the substantial facts
before the court. A vague
allegation is made which purports to state that the appellant does
not reside with the complainant. It
reads:
‘
First
offender
The
suspect does not have previous conviction
The
victim does not reside w____’
[24]
The following
appears from the transcript:
‘
COURT
:
Okay, just tell me since when is he no longer staying with the
victim?
PROSECUTOR
:
Your Worship, the thing is this affidavit, the investigating officer
did not ask enough information. he just mentioned that accused
person
is not staying with the complainant. So, we don’t know, it is
not clear whether they are staying in the same place
as before or
what or because of this incident that the complainant is no longer
staying with the accused person. So unfortunately,
he did not give us
sufficient information regarding that aspect, Your Worship.’
[25]
One gains the
impression that the prosecutor was ill-prepared for an engagement
with the court on the provisions of the Act and
what is required to
be established. The investigating officer refers to only one charge,
ignoring the second.
[26]
The appellant
was not allowed to show how he contributed to the expenses of the
family and children, specifically when reference
was made to prove.
Whilst an accused is under no obligation to testify in his bail
application, the use of proforma statements
creates the risk that the
court is not fully appraised of all material and substantial facts
for consideration.
Conclusion
[27]
Both parties
failed to assist the magistrate in evaluating the facts and
considerations. It does not serve the interest of justice,
and
upholding or dismissing an appeal under these circumstances would be
unfair.
[28]
The matter
should be referred back to the magistrate’s court for a proper
evaluation.
[29]
I therefore
make the following order.
ORDER
The
matter is remitted to the Bloemfontein Magistrate’s Court
to urgently reconsider the bail application and afford
the
parties an opportunity to address all relevant facts within 10 days
from the date of this judgment.
CRONJÉ,
AJ
Appearances:
For
the Appellant
:
Adv
BKJ Thebe
Mr
LP Shiba
Instructed
by
:
LP
Shiba Attorneys
Bloemfontein
Instructed
by:
For
the Respondent
:
No
appearance
[1]
Criminal Procedure Act 52 of 1977
.
[2]
S
v du Plessis
1993 (2) SACR 379
(T) at 384-385.
[3]
S
v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat
[1999]
ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771.
[4]
Ibid para 11.
[5]
Moola
v S
[2023]
ZAGPJHC 97.
[6]
Ibid para 38.
[7]
Ibid para 39.
[8]
Ibid para 40.
[9]
Motsi
v S
[2022]
ZAWCHC 151; 2023 (1) SACR 218 (WCC).
[10]
Ibid para 71.