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2024
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[2024] ZAECBHC 29
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Plaatjies v S (CA&R51/2024) [2024] ZAECBHC 29 (12 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO.: CA &R
51/2024
In
the matter between:
ISAAC
PLAATJIES
Applicant
and
THE
STATE
Respondent
JUDGMENT
JOLWANA
J:
Introduction
[1]
This is an
application for bail on new facts. The applicant’s two
previous bail applications were unsuccessful in the
magistrates’
court. Consequent upon the dismissal of the said bail applications,
the applicant pursued appeal processes.
The appeal in respect
of the first bail application failed in the High Court, the Supreme
Court of Appeal and the Constitutional
Court. The appeal in
respect of the second bail application which was an application for
bail on new facts, also failed in
the High Court and the Supreme
Court of Appeal. The applicant instituted appeal processes in
the Constitutional Court.
For reasons that are not altogether
very clear, the application for leave to appeal to the Constitutional
Court was withdrawn about
a week or so before this application was
heard.
Background.
[2]
On 17 November 2023, the applicant was arrested as a result of
investigations into
the spate of attempted murders of certain senior
executive members of the University of Fort Hare (the University),
being the Vice-Chancellor,
the Deputy Vice-Chancellor and the murders
of the University’s Transport Manager, Mr Roetz and the
Vice-Chancellor’s
protector, Mr Mboneli Vesele. All these
attempted killings and killings appear not to have been random acts
of criminality.
The indictment and some of the evidence that
police have gathered point to an execution that was done with some
degree of precision.
In his affidavit filed in support of his
initial bail application, the applicant accepted that his bail
application fell
under the provisions of section 60(11)(a) of the
Criminal Procedure Act (CPA)
[1]
.
He was charged with the premeditated murder and as co-perpetrator in
the killing of Mr Vesele as a result of which his charge
fell within
the scope of Schedule 6. He therefore accepted that he had to
satisfy the court as to the existence of exceptional
circumstances
that permitted his release on bail in the interests of justice.
[3]
In his affidavit the applicant placed before court the following
information.
He was a lead investigator against corruption,
maladministration and fraud at the University. He was directly
involved in
the investigation against suspects allegedly involved in
criminal offences relating to the murder of potential witnesses.
He assisted the Task Team of the police tasked with investigations
into the murders and attempted murders of senior-level personnel
of
the University. As such he sat in high-level discussions on the
investigations conducted by the Task Team. He had several
meetings and consultations with the prosecutor, the Vice Chancellor
and the Task Team. He therefore had intimate knowledge
of the
investigations involved and possessed information pertaining to the
investigations which he kept on his laptop computer
and cell phone.
It would therefore be hardly surprising for the police to find highly
sensitive information including hit
lists, photographs and contact
details which could have come into his possession or his personal
assistant’s possession as
a result of his involvement in the
investigations into all these matters. There was no direct
evidence linking him to the
murder of Mr Vesele. The State was
apparently drawing inferences from his cell phone activities on the
day of Mr Vesele’s
murder.
[4]
The applicant cited the following personal circumstances which, as I
understand his
averments, brought him within the ambit of section
60(11)(a) of the CPA. He was 56 years old, married to his wife
of 18 years.
There are two sons born of the marriage, one
daughter and two grandchildren. His eldest son was born in 1990
and stayed at
the family home in Buffalo Flats. His second son
was born in 1992 and resides in Johannesburg. His third son was
born
in 2001 and is still studying at East London College. He
pays school fees for his third son and for his rented accommodation
in Braelyn in East London. The monthly rental for the said
rental accommodation is R6000.00. His third son has a two-year-old
son. He also provides financial support for his two
stepchildren. One of them is a second-year student at UNISA and
has a two-year-old child. He owns two properties both of which
are bonded with financial institutions and pays monthly instalments
of R12 000.00 and R14 000.00 respectively for each property.
[5]
He was employed at the University earning a salary of R145 000.00
a month.
He was considered the right-hand man of the
Vice-Chancellor. He had bodyguards due to security threats on
his life.
He was not a flight risk. He was the former
head of a prison in East London. He has an emotional attachment
to the
Eastern Cape and would never run away. He would comply
with all bail conditions if released subject to such conditions and
has no history of not complying with bail conditions. On his
arrest, the police searched him and also searched his house
after
which he was detained. He would not destroy evidence or
interfere with witnesses. He did not have pending cases.
His only previous conviction which was related to a family dispute
dates back 35 years ago. In that case, he was arrested
and
convicted of possession of suspected stolen property. His
release on bail would not prejudice the bail system and the
criminal
justice system. He is a national leader of the South African
National Civil Organisation (SANCO). At the time
of his arrest,
he was going to attend a national conference of SANCO which was
scheduled for the week beginning on 23 November
2023 in KwaZulu
Natal. He was going to stand for nomination for the position of the
national organiser at the said conference.
[6]
The investigating officer, Sergeant Mokoena deposed to an affidavit
opposing the release
of the applicant on bail. He stated that
he is attached to the executive services of the South African Police
Services National
Task Team in Pretoria. He is a detective with
more than 15 years in the service, ten years of which he has been in
investigations.
He has extensive experience in investigations
of murder, possession of unlicensed firearms and ammunition, house
robberies and
housebreaking with intent to steal and theft. The
applicant was facing two charges of premeditated murder for his
participation
in the killing of Mr Roetz and Mr Vesele. These
two murders were preceded by a shooting incident at the home of the
Vice-Chancellor
which he shared with his bodyguard, Mr Vesele and
another shooting incident at the home of the Deputy Vice-Chancellor.
[7]
There was evidence linking the applicant to the murders. In the
killing of Mr
Vesele, three vehicles were involved being two Suzuki
vehicles and a maroon Jeep vehicle (the Jeep). The drivers of
the vehicles
were as follows. Accused No. 4 was driving the
Jeep. Accused No. 9 was driving one of the Suzuki vehicles and
the second
Suzuki vehicle was driven by an outstanding suspect.
The police records and witness statements showed that Accused No.6,
7, 8 and 9 hired the Suzuki vehicles at Mthatha Airport.
Accused No.7 and 8 secured accommodation at Palm Tree B & B in
East London. Accused No. 6, 7 and 8 were responsible for
funding the hiring of the two vehicles which were hired by Accused
No. 9.
[8]
On the day of Mr Vesele’s murder, the hitmen first went to
accused no.1’s
township in Ginsberg near King Williamstown
where they spent an hour. A few hours later the applicant
visited the hitmen
being accused no.4, 5, 9 and one Sipho and others
in their B & B accommodation before the killing of Mr Vesele.
After
Mr Vesele was killed the Jeep was abandoned a few kilometres
from the crime scene. Fingerprints of accused N-o.4 and 5 were
lifted from the Jeep. Police discovered a hit list hidden in
the boot of the Jeep. Police also recovered cartridges
in this
vehicle which were later linked to the scene of Mr Vesele’s
murder. Those cartridges were also linked to the
projectile
found in Mr Vesele’s body. Mr Roetz, the Vice- Chancellor
and the Deputy Vice-Chancellor were among 13 people
on the hit list.
[9]
The cell phone confiscated from the applicant at the time of his
arrest was the source
of the hit list. The applicant sent
photos of the 13 people on the hit list to accused No.9. Before
sending the photos
applicant had a number of telephone conversations
with accused No.9. He first sent him a message asking him if he
was on
WhatsApp communication platform so that he could send him the
photos. The photo of Mr Roetz was among the photos the
applicant
sent to the hitmen. The team investigating the
murders analysed the cell phone billing of accused No.9. They
came across
the applicant’s cell phone number which indicated
that the applicant called the hitmen on the day of Mr Vesele’s
murder.
One of the photos in the list was a bullet-riddled
Mercedes Benz vehicle of a recently slain Mr Nceba Ncunyana.
The said
photo was one of the photos sent by the applicant to accused
No.9. Mr Ncunyana’s death resembled the other killings
in
this case in that all the victims died in their vehicles.
[10]
Sergeant Mokoena further averred that the witnesses in the hit list
would not be safe if the
applicant was released on bail.
Recently, the investigating officers, constable Ndlovu and himself
were sent threatening
messages suggesting that they must be killed
together with the State advocate. The applicant played the role
of an overseer
in the killings while portraying himself as heading
the investigations which he was in fact misdirecting. He sent
his own
photo to accused No.9 suggesting that he was also a possible
victim. He continued arranging for the protection of some of
the victims whilst at the same time he was talking to the hitmen.
The applicant showed that he would interfere with the
investigations. In one of his conversations with accused No.9,
he was asked by accused No. 9 if there could be cell phone
investigations. The applicant responded that there would be cell
phone investigations and that accused No. 9 must delete the
information
and throw the phone in the sea.
The
court’s findings.
[11]
After an analysis of the evidence placed before him, in particular,
the personal circumstances
of the applicant in discharging the onus
of establishing the exceptional circumstances, the presiding
magistrate concluded that
the applicant’s personal
circumstances did not fall under what can appropriately be called
exceptional circumstances.
The court concluded that the
applicant has intimate knowledge of the State’s case as he was
involved in and assisted during
the investigations. Therefore,
he might interfere with State witnesses, destroy evidence or
intimidate State witnesses.
The court further concluded that
the applicant’s release on bail could endanger the lives of the
Vice-Chancellor, the Deputy
Vice-Chancellor, the members of the team
investigating this case and the lives of other witnesses. It
therefore concluded
that he failed to meet the requirements of
section 60(11)(a) of the CPA and dismissed his application to be
released on bail.
The
first bail application on new facts.
[12]
Just over a month after the dismissal of his bail application, the
applicant launched a renewed
bail application on the basis that since
his initial bail application, he was now in a position to place
certain facts before court
which were new facts. He stated that
initially he did not have the phone billing of the calls of accused
no.9’s cell
phone number and he did not have accused No.9’s
cell phone number. Even at the date of his application for bail
on
new facts, the State had still not disclosed accused No.9’s
cell phone number and his attorney’s request to be furnished
with that number by the prosecutor was refused. In his refusal
to furnish the applicant with accused No.9’s cell phone
number,
the prosecutor relied on section 60(14) of the CPA
[2]
.
The applicant contended that such refusal was unreasonable on the
basis that investigations against accused No.9 were completed
early
in November 2023. Secondly, at the time he applied for bail on
new facts, it had been two months since his arrest on
17 November
2023. By 6 December 2023, his telephone records were retrieved from
his work cell phone and relied on during his initial
bail
application.
[13]
The applicant stated that at the time of his arrest, he demanded a
search and seizure warrant
which the police did not produce.
The police never asked him for the password to his seized cell
phone. His premises
in Cambridge were forcefully entered into
without a warrant to search the said premises. He was then only
charged with the
killing of Mr Vesele and was not informed that he
was also being arrested for the murder of Mr Roetz. His counsel
was only
informed of the charges relating to the killing of Mr Roetz
on 5 December 2023 at which time the State also confirmed that its
evidence was limited to telephonic evidential material. It was
only after the delivery of the judgment in respect of his initial
bail application that it became clear that the State was intent on
also charging him with all the charges preferred against accused
No.9.
[14]
Between 17 November 2023 and 13 December 2023, he was unable to
gather crucial evidence in his
favour so as to deal with the
allegations of the State against him. In particular, the
allegation that on 6 January 2023,
before and after the killing of Mr
Vesele, he made several calls to accused No.9; that before he made
the calls he sent a short
message to accused No.9 asking him whether
he was on WhatsApp so that he could send photographs of the people
that were to be killed;
that he sent photos of those people to
accused No.9; that he organised the hit on Mr Ncunyana; that he had a
WhatsApp conversation
with accused No.9 in which the latter asked if
telephone records could be traced and he said they could be traced;
that he advised
accused No.9 to throw the phone to the sea; and that
he could be traced through a Telkom Tower to have been around the
Palm Tree
B & B where the suspects allegedly met on 6 January
2023 before the killing of Mr Vesele and therefore he visited the
said
B & B.
[15]
The applicant then details the additional charges which had been
preferred against him since
the refusal of his initial bail
application in respect of which it was alleged that in committing all
the offences, he acted in
concert and common purpose with all the
other accused. The applicant said that at the time of his
initial bail application,
the charges he faced relating to the
premeditated murder of Mr Vesele and Mr Roetz were clear. The
other charges against
him were a new fact. There was no
evidence to support the additional charges against him with the State
relying on nothing
more than inferences. Such inferences, he
alleged, were based on his alleged telephone communication with
accused No.9 on
6 January 2023; the short messages with accused No.9
and the sending of a hit list and photographs to accused No.9.
The inferences
were further based on his alleged visit to Palm Tree B
& B based on his work cell phone being traced to the area around
the
said B & B and his alleged instructions to accused No.9 to
throw his phone to the sea.
[16]
He denied visiting the Palm Tree B & B on 6 January 2023 saying
that he did not know where
that B & B is located. He did
not know accused No.9 and never had any dealings with him and never
made any telephone
calls to him or sent short messages or a hit list
and photographs to him. The applicant explained that the reason
he did
not place before the court any of these denials was that he
was confused at the insistence of the State that he had sent a hit
list and photographs to accused No.9 on his work cell phone. He
needed to get technical assistance to trace the owners of the cell
phone numbers which appeared in the itemised billing of his work cell
phone. He could not do so until 8 January 2024 when
he obtained
the evidence. He attached the evidence which he said proved
that it was not true that he ever telephoned accused
No. 9’s
cell phone number on 6 January 2023. He stated that none of the
cell phone numbers he was alleged to have called
on his work cell
phone number on 6 January 2023 belonged to accused No.9. He
contended that the above circumstances also
constituted new facts.
[17]
He had since gathered evidence which showed that the cell phone calls
of some of the executive
members of staff at the University were
interfered with. He contended that it was highly probable that
due to interference
with his calls and communications, his phone was
hacked as the interference with phones at the University was never
resolved.
In this regard, he attached an email sent to his
attorney by Professor Tladi on 16 December 2023. The email
attached to Professor
Tladi’s email is dated 10 August 2020 and
refers inter alia, to what is referred to as the cross-lines of some
senior executives
or interferences on their cell phones. The
applicant’s name appears in that email with five other names.
The
applicant also attached an affidavit deposed to by Anna Smith,
his former personal assistant. Ms Smith raised in some detail
the same issue of interference with work the cell phones including
that of the applicant.
[18]
The applicant contended that the State had not established any
motivation for his involvement
in any of the crimes. He did not
have to kill Mr Vesele as he could have just suspended him as Mr
Vesele reported to him.
He and the Vice-Chancellor had together
been involved in the clean-up of the University from the negative
reputation of its production
of fraudulent degrees for highly
connected individuals. His employment contract was attached to
that of the Vice-Chancellor
and if the Vice- Chancellor was killed,
he would have to leave the University. He did not have any
motive to kill the Vice-Chancellor
and none was proved by the State.
He had personally retrieved the CCTV footage of the people who
attacked the Vice- Chancellor’s
residence and he gave it to the
police. He had deposed to numerous affidavits which he
submitted to the Vice-Chancellor,
the DPCI and the SIU on academic
fraud and corruption at the University. It therefore did not
make sense that he could be
involved in the murder of the witnesses
who assisted him in exposing criminal activities at the University.
[19]
He had provided the information that led to the arrest of his
co-accused for their alleged involvement
in the murder of Mr Roetz
after he had obtained such information from one of his bodyguards.
The charges against him were
trumped up so as to remove him from the
investigations of academic fraud, fraud and corruption at the
University. He had personally
suspended accused No.1 after gathering
evidence of fraud against him. It was therefore bizarre that he
allegedly acted in
furtherance of a common purpose with him. He
contended that he was being framed by the police for crimes he never
committed.
He had been advised by accused No.9 when they met in
prison whom he did not even know that the police wanted accused No.9
to implicate
him. The threat to his life caused him to get a
place of safety in Nahoon, East London for which he was paying a bond
of
R14 000.00 per month.
The
court’s findings.
[20]
The State elected not to give any evidence in rebuttal of the
applicant’s averments.
The merits of the applicant’s
bail application on new facts were argued and the court dismissed the
application. It
found that the applicant was, throughout, aware
that the State relied on his telephone records. He therefore
knew the type
of evidence in possession of the State. The court
was not convinced that his own cell phone records only came to light
after
the refusal of the court to grant him bail. He had failed
to make use of that evidence during his initial bail application.
It concluded that the cell phone records contained nothing new.
It found that the evidence presented by the applicant was
not new and
dismissed his application. The applicant’s appeal against
the court’s refusal to release him on bail
based on new facts
to the High Court and the Supreme Court of Appeal was unsuccessful.
He withdrew his appeal to the Constitutional
Court not long before
the hearing of this application.
The
second application for bail on new facts.
[21]
Subsequent to the referral of the criminal trial to this Court, the
applicant instituted a further
application for bail on new facts in
this Court. The applicant raised no less than five issues under
the rubric of new facts.
After the court asked some
clarity-seeking questions in respect of four of those five alleged
new facts, counsel for the applicant
conceded that they were either
not new facts or unmeritorious, and elected to abandon four of them.
For the sake of completeness,
and to make the point that I did
consider them, I mention them briefly hereunder. The first one is the
long period in which the
applicant has been in incarceration.
There is no suggestion that the delay in the commencement of the
actual criminal trial
was a result of dilatoriness on the part of the
State. In fact, counsel for the applicant placed on record that
the applicant’s
focus has been on being released on bail all
along and the appeal processes subsequent to the refusal of his two
previous bail
applications. The second new fact the applicant
raised is the lack of evidence implicating him. This issue was raised
in
both the initial bail application and the first bail application
on new facts. Raising the same issue for the third time is
inappropriate
and ill-advised.
[22]
The third alleged new fact is based on the applicant’s
contention that there was no evidence
linking him to the murder of Mr
Vesele. He contends that there was therefore no basis for
charging him with premeditated
murder. The contention is that
the applicant should not have been charged under Schedule 6.
The first observation to
make is that from the onset, the applicant
was charged under Schedule 6. The basis on which the charges should
now be watered down
to a lower Schedule is not clearly articulated or
laid out in the applicant’s affidavit. The second
difficulty is that
I was not referred to any authority for the
proposition apparent in this challenge that this Court can decide on
behalf of the
Director of Public Prosecutions with which offence may
an accused be charged. It seems to me that any such proposition
would,
without more, be egregious in the extreme and would fly in the
face of the provisions of section 179 of the Constitution as well
as
the
National Prosecuting Authority Act 32 of 1998
. Neither in
the applicant’s affidavit nor in both the heads of argument and
the supplementary heads of argument does
any of this legislation
receive mention. After hearing evidence during the trial, the
court is empowered and enjoined to
determine if the evidence
presented by the State establishes premeditation for purposes of
conviction, not prematurely. This
alleged new fact is just yet
another misguided attempt at creating something new. In any
event, in his two previous bail
applications, the applicant never
challenged the schedule under which he was charged or the fact that
the murder of Mr Roetz and
Mr Vesele was premeditated. The
fourth new fact relied upon was the constitutional rights provided
for in sections 12 and
35 of the Constitution. There was,
however, no elaboration on how any of these rights were somehow
contravened by his incarceration
through the legitimate investigative
and prosecutorial functions of the relevant State agencies.
Counsel for the applicant
could not explain how the arrest and
detention of the applicant were arbitrary as the applicant seemed to
allege.
The
applicant’s medical condition.
[23]
The only new fact of substance which is indeed new is the applicant’s
medical circumstance.
The applicant says that since June 2024,
he has been trying to get permission from the prison authorities to
be afforded specialist
medical treatment at his own cost. His
examination by a private medical practitioner only occurred on 13
September 2024 at
the King Williamstown Correctional Centre by Dr
Tyler, a specialist urologist in private practice based at Life
Beacon Bay Hospital
in East London. He was diagnosed with a
significant bladder outflow obstruction caused by a urethral
stricture and an enlarged
prostate gland.
[24]
Dr Tyler’s report is dated 19 September 2024 and reads as
follows:
“
To
whom it may concern
RE:
MEDICAL REVIEW – MR ISAAC PLAATJIES (ID NUMBER … 083)
I
am writing to inform you that Mr Isaac Plaatjies recently underwent a
medical consultation in the King Williamstown Prison.
The
examination revealed a significant bladder outflow obstruction caused
by a urethral stricture and an enlarged prostate gland.
In
light of these findings, it was deemed necessary for Mr Plaatjies to
undergo a urethral dilation procedure to alleviate his symptoms.
He will need regular or monthly urology consultations moving forward.
Should
you require any additional information or clarification regarding Mr
Plaatjies’ medical condition please do not hesitate
to contact
me directly.”
[25]
The applicant states that he saw Dr Tyler after receiving consistent
medical treatment from the
prison hospital. He had been seen by
nursing staff and examined by general practitioners at the
correctional centre hospital
since his admission thereat. The
treatment that was prescribed for him did not help. Since his
detention, he has had
to constantly visit the ablution facilities and
in many instances, no urine would come out. This caused him
untold pain and
the situation has gotten worse as a result of which
he struggles to sleep. Even after paying R20 000.00 to Dr Tyler
and making
arrangements for him to come, the head of the correctional
centre did not allow him to be seen by Dr Tyler. It took a
threat
of an urgent application by his attorney for Dr Tyler to be
allowed to see him after he had to comply with certain procedural
requirements.
[26]
His detention has resulted in him running out of funds to defend
himself and to pay for private
health care. He has had to seek
assistance from friends but no further assistance was forthcoming.
He accepted that
the Correctional Services Department is unable to
afford to pay for such expensive medical services, procedures, and
regular and
monthly urologist consultations. In all these
circumstances, he contended that his situation is an exceptional case
for him
“
to
be released so that I can be able to work and raise funds to save my
life.
”
[3]
It was common cause that the applicant was dismissed from his job at
the University on 18 January 2024. It is clear
that the
applicant wants to be released so that he could look for a job in
order to work and raise funds to save his life.
I asked counsel
for the applicant if the applicant’s health condition was as
serious as he suggested in his affidavit, how
he was going to look
for a job; get the job and be able to work considering his medical
condition with the seemingly debilitating
effects he described in his
affidavit. Counsel was unable to assist the court with any
coherent and insightful submissions
to these concerns.
The
basis of the State’s opposition to the release of the
applicant.
[27]
Detective Sergeant Mokoena has gone into some detail in his affidavit
explaining how the applicant
was linked to the offences in this
matter. I do not intend to get into the details of all the
evidence that was uncovered
by the police and how the applicant was
said to be linked to these crimes. What is very clear though is
that by all accounts,
these offences were carefully planned and
executed. A lot of that evidence has been considered by our
courts in the context
of the two previous unsuccessful attempts by
the applicant while some may have been uncovered during further
investigations.
There is no need to further regurgitate any of
it now save to point out that the applicant has not come up with
anything new that
would tilt the scale in his favour. If
anything, there is now further detailed evidence that police
investigations have uncovered
which, instead of casting doubts as to
the strength of the State’s case against the applicant, does
the direct opposite in
showing that the applicant may have a serious
prima facie
case to answer.
[28]
With regard to the applicant’s medical condition, the first
observation is that Dr Tyler’s
report is in the form of a
letter as against a deposition under oath. This is not an ideal
way of presenting evidence in
court. In any event, even if one
were to accept the letter without demure, as counsel for the State
pointed out, it does
make it clear that all the applicant requires is
the “
regular
” (which is not explained) “or
monthly urology consultations moving forward
.” In
this regard and with reference to an affidavit deposed to by Ms
Andiswa Martin-Adam, Detective Sergeant Mokoena
contends that the
prison personnel are capable of monitoring the applicant’s
medical condition. Ms Martin-Adam is the
operational manager
for health care services at the King Williamstown Correctional
Centre.
[29]
She explains that the centre has a sick bay manned by professional
nurses. When professional
nurses are unable to treat a
condition in which an inmate suffers, such an inmate is referred to a
sessional doctor who normally
comes once per week on Wednesdays.
However, where a condition is deemed to be urgent, they do not wait
for the sessional
doctor. The inmate is immediately referred to
Grey Hospital which is the hospital nearest to their correctional
centre.
If Grey Hospital cannot treat an inmate’s medical
condition, such an inmate is referred to either Cecilia Makiwane
Hospital
or Frere Hospital. When an inmate would rather be
treated by a private medical doctor at his own expense, they have
policies
to deal with that situation. The private health care
treatment can be arranged subject to an application to and approval
by the head of the prison. She emphasises that they do have
means to access medical facilities to cater for all inmates and
their
individual and varied medical conditions. These include, at the
inmate’s own expense, treatment at a private
hospital subject
to being guarded by correctional officials.
Analysis.
[30]
I have captured much of the applicant’s case which he presented
in the initial bail application,
the first application for bail on
new facts and some of the factual matrix pertaining to the further
application for his release
on bail based on new facts in this
Court. This is despite the fact that both earlier applications
for the release of the
applicant failed as did his appeals all the
way to the Constitutional Court as I said before. I considered
it necessary to
do so because the application for the release of an
accused person on bail based on changed circumstances is not
determinable independently
of and without regard to earlier
application/s. In
Vermaas
[4]
the court stated this legal position as follows:
“
[A]n
accused cannot be allowed to repeat the same application for bail
based on the same facts week after week. It would be
an abuse
of the proceedings. Should there be nothing new to be said the
application should not be repeated and the court
will not entertain
it. But it is a
non-sequitur
to argue on that basis that where there is some new matter the whole
application is not open for reconsideration but only the new
facts.
I frankly cannot see how this can be done. Once the application
is entertained the court should consider all
the facts before it, new
and old and on the totality come to a conclusion. It follows
that [the court] will not myopically
concentrate on the new facts
alleged.”
[31]
It is difficult to fathom how there can be any talk of new facts
unless the old facts have also
been brought into the equation and
reconsidered together with the new facts. This is done, not to
venture into an impermissible
disguised review or appeal against the
earlier rulings by the lower court but to do justice to the accused
person on whom the onus
lies and to see if it would be in the
interests of justice for an accused to be released on bail in light
of the circumstances
which may have changed. This also helps
the court hearing bail on new facts to relook at the question whether
in fact the
accused person does face or is not facing a potentially
strong case which he must answer in due course. This evaluation would
be
based on further developments as the State’s case with which
he was earlier confronted may have gone through changes as a
result
of the investigative work of the police. It could very well be
that investigations which were ongoing cast doubt on
the strength of
the State’s case or even strengthen the case the accused
applicant for bail has to answer.
[32]
Before the court made the observations it did in
Vermaas
, with
which I respectfully agree, it looked at the interplay between
subsection 60(11) of the CPA and its preceding subsections.
It
then expressed itself as follows:
“
Significant
is the difference in the wording between s 60(11) and the subsections
which precede it. Section 60 is of general
application but s
60(11) is an exception to the general rule. The general rule
set out in s 60(1)(a) is that the accused
is entitled to be released
on bail unless the court finds that it is in the interests of justice
that he be detained in custody.
That wording in my view,
creates an onus. The onus rests upon him who asserts that the
accused should not be released, that
is the State. In cases of
doubt the accused goes free. The converse is the case where s
60(11) is applicable.
It is expressly worded as an exception by
the use of ‘notwithstanding any provision of this Act.’ …
It is imperative,
‘the court shall order the accused to be
detained’. The accused is called upon to satisfy the
court that the
interests of justice do not require his detention in
custody. Clearer wording cannot be sought for an onus on the
accused.”
Has
the applicant discharged the onus of establishing exceptional
circumstances?
[33]
The one new fact that was conceded by the State as being a new fact,
the applicant’s medical
condition, is not without challenges or
difficulties, putting it mildly. On the contrary, it is fraught
with problems as
I demonstrate hereunder. The reading of the
applicant’s affidavit creates an impression of a critically ill
inmate
who, at times, even struggles to sleep due to the regular and
constant need to go to the ablution facilities to relieve himself.
This causes him “
untold pain
”, he says. However,
a closer look at the letter from his doctor appears to contradict
this impression. It specifically
says that all that the
applicant needs is regular or monthly urology consultations. I
understand this to mean that the applicant
must be given at least one
specialist urology consultation a month or as required by the medical
team that is looking after him
subject to the regulatory framework of
the department. In one place in his affidavit, the applicant
embellishes his doctor’s
letter and makes a misleading and
alarmist self-diagnosis that he is in danger of progressing towards
prostate cancer. Nowhere
in his letter does the doctor even
remotely make such a conclusion. The applicant baldly makes
this magnification and creates
the impression that his life is in
danger if he remains in custody and that he needs to be released on
bail in order to save his
life.
[34]
In the same vein, the applicant pleads poverty due to having run out
of funds to defend himself
and to pay for the specialist urologist
treatment and consultations. He then contends that his health
condition is an exceptional
case for him to be released “
so
that he can be able to work and raise funds to save his life
.”
Yet another confusing magnification and covet embellishment of his
situation and health condition. He is now,
on his own
reckoning, fit enough to look for a job; get the job; work and save
money so that he can have funds to defend himself
and to pay for
specialist monthly urologist consultations and treatment.
Putting aside the question of the availability of
a job for the
56-year-old, whose nature is unclear, I am more than certain that all
the awaiting trial inmates would relish the
opportunity to be
released from custody so that they may compete in the job market;
raise funds to fund their trial related expenses;
access to private
medical facilities and treatment and even support their families
while the trial process is dragging on.
This goes to show that
the applicant’s health condition at present is far from being
an exceptional case for purposes of
his release from pre-trial
incarceration. This is especially so if regard is had to the
detailed affidavit of Ms Martin-Adam
regarding the departmental
policies that are specifically designed to cater for the inmates
under their care and their varied health
conditions some of which may
be very serious and even life-threatening.
[35]
The seriousness of the offences with which the applicant has been
charged; the evidence already
in the police docket which the
applicant has or can have access to which is captured in quite some
detail in Sergeant Mokoena’s
affidavit; the precision with
which the offences were planned, funded and executed leading to at
least two fatalities at the time
the applicant was arrested all
suggest, at least at a
prima facie
level, that the applicant
has a very serious case to answer. That being so, the danger
that his release from custody may
potentially pose to State witnesses
cannot be ignored or underestimated and militates very strongly
against his release on bail
in the interests of justice. The
alleged threat to the lives of some of the members of the
investigating team and the applicant’s
very intimate knowledge
of the investigating methods of the police in this case due to his
earlier involvement and his deeply intimate
knowledge of some of the
State witnesses; and how critical some of their evidence may be, all
point to the release of the applicant
on bail not being in the
interests of justice. The applicant’s health condition
does not change this concerning picture
in my view.
Conclusion.
[36]
As I conclude, something more needs to be said about the
constitutional rights that the applicant
asserts in his affidavit.
In explaining the tension between the right to freedom and all
other rights contained in the Bill
of Rights and the need for those
arrested for alleged complicit in certain categories of serious
crimes, I can do no better than
the eloquent articulation of Kriegler
J in
Schietekat
[5]
,
in which, writing a unanimous judgment of the Constitutional Court,
the learned judge said:
“
It
should of course never be forgotten that the Constitution does not
create an unqualified right to personal freedom and that it
is
inherent in the wording of s 35(1)(f) that the Bill of Rights
contemplates – and sanctions – the temporary deprivation
of liberty required to bring a person suspected of an offence before
a court of law. The hypothesis, indeed the very reason
for the
existence of s 35(1)(f), is that persons may legitimately and
constitutionally be deprived of their liberty in given
circumstances.
This clearly establishes that, unless the
equilibrium is displaced, an arrestee is not to be released.
Section 60(11)(a)
therefore does not create an onus where nothing of
the kind existed before. It describes how it is to be
discharged, and
adds to its weight. As in the case of reliance
on any other right in the Bill of Rights, if accused persons wish to
rely
on s 35(1)(f), they must bring themselves within its ambit.
The words ‘interests of justice permit’ form part
of the
definition of this right; they delineate its ambit. The court
must be satisfied that ‘the interests of justice
permit’
the release from detention. Where all the relevant factors are
common cause, the matter is decided by the presiding
judicial officer
exercising a value judgment according to all the relevant criteria on
the basis of these facts in the manner described
in this judgment.
If facts indispensable for establishing that the interests of justice
permit the arrestee’s release
are not established, the arrestee
is not entitled to the remedy under the subsection.”
[37]
In all the circumstances and having regard to all the evidence placed
before me, I am not satisfied
that the interests of justice permit
the release of the applicant on bail. This is because the
applicant has failed to discharge
the onus resting upon him to
establish exceptional circumstances that, in the interests of
justice, permit his release from pre-trial
incarceration. It
stands to reason therefore that the applicant’s application to
be released on bail based on new facts
must fail.
The
result.
[38]
In the result, the following order is issued:
1.
The
applicant’s application to be released on bail based on new
facts is dismissed.
M.S
JOLWANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Appellant
:
Adv
J.
Korkie
Instructed
by
:
Makhanya Attorneys
East
London
Counsel
for the Respondent
:
Adv
N
Ntelwa
Instructed
by
: Deputy
Director of Public
Prosecutions
Makhanda
Heard
on
: 17
October 2024
Judgment
Delivered on
:
12
November 2024
[1]
Section
60(11)(a) reads: Notwithstanding any provisions of this Act, where
an accused is charged with aa offence referred to (a)
in Schedule 6,
the court shall order that the accused be detained in custody until
he or she is dealt with in accordance with
the law, unless the
accused, having been given a reasonable opportunity to do so,
adduces evidence which satisfies the court
that exceptional
circumstances exist which in the interests of justice permit his or
her release.
[2]
Section
60 (14) reads:
Notwithstanding anything
to the contrary contained in any law, no accused shall, for the
purposes of bail proceedings, have access
to any information, record
or document relating to the offence in question, which is contained
in, or forms part of, a police
docket, including any information,
record or document which is held by any police official charged with
the investigation in
question, unless the prosecutor otherwise
directs: Provided that this subsection shall not be construed as
denying an accused
access to any information, record or document to
which he or she may be entitled for purposes of his or her trial.
[3]
My
emphasis.
[4]
S
v Vermaas
1996 (1) SACR 528
(T) at 531 e-f.
[5]
S
v Dlamini, S v Dladla and Others; S v Jubert, S v Schietekat 1999(4)
SA 623 (CC) at 670 E-H