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2024
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[2024] ZAECMKHC 135
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Khuza v S (CA&R81/2024) [2024] ZAECMKHC 135 (23 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
Reportable/
Not
Reportable
Case
no.: CA&R81/2024
Matter
heard on: 20 August 2024
Judgment
delivered on: 23 August 2024
In
the matter between:
WANINI
KHUZA
Appellant
and
THE STATE
Respondent
JUDGMENT
BRODY
AJ
1.
The appellant is a 70-year old male who previously worked for the
University
of Fort Hare, as a driver, for a period of approximately
thirty years.
2.
Close to his retirement age, he was then requested to continue
working until
September 2022, after which, he went on pension. He is
married and has five children. Some of these children are dependent
upon
him and he receives a monthly pension of R5 500.00 from Old
Mutual.
3.
At his incarceration he lived on a small-scale farm where he owned
livestock
and poultry and he is presently the owner of two houses,
one in Mdantsane, and one in Msintsini Village. At the time of his
initial
bail application he had no previous convictions save for a
drunken driving conviction in 2003 for which he was fined R2 000.00.
He had no pending cases against him.
4.
At his initial bail application, he stated
inter alia
the
following:
“…
I will
not attempt in any way to evade my trial. I have emotional family,
community and business ties within this Honourable Court.
I do not
have any means and/or documents which may enable me to leave this
country. I submit furthermore that the State does not
have a strong
against me which may be an incentive for me to attempt to evade my
trial should there be one. I respectively submit
that the facts set
out above support my contention that I do not constitute a flight
risk… I am not familiar with the identity
of the complainant
in this case, but I am not aware of the evidence which the
complainant may bring against me. In any event, I
have no intention
to interfere with the complainant and/or any witnesses as I have no
cause to do so and I undertake not to do
so. In any event, the court
may impose bail conditions which I will gladly comply with. I am not
aware of the status of this matter,
whether or not it has been
completed. Be that as it may, I undertake not to interfere with any
investigation. I submit with respect
that, should this Honourable
Court grant me bail, any conditions against me will both be effective
and enforceable. …”
5.
At that stage the appellant stood arraigned, together with nine other
accused
persons, in the Magistrate’s Court at Alice on various
charges in case no: A80/2023 (“the case”). The appellant
is accused number three in that case.
6.
The investigating officer testified at the initial bail application
and stated
the following in regard to the appellant’s
involvement in the shooting incidents which gave rise to the
accused’s arrest:
“
The following
explanation detail how each accused is linked to the shooting
incidents: …”
[10]
Evidence shows that the effected persons comprising of two separate
groups, that is, the group
of the professors and other senior
academic members including Bongani Peter, and another one comprising
of again Bongani Peter,
Wanini Khuza and Sicelo Mbulawa, sat and
planned smearing of the Vice-Chancellor (that is the VC) and his
killing if that did not
work. This led to the unrest and damaging of
property in the university. They [?] also led to the planning of
killing of Roets.
They believed that his death could reopen the now
closed doors in order to line up their pockets again. Mbulawa was
given the task
of organising hitmen. He promised to bring his Mthatha
guys. All three have confessed about the killing of Roets.” …
“But when police found the hitlist, that is 13 names, in the
jeep, three of the victims, that is Vice-Chancellor, Roets and
Chief
Financial Officer had Bongani Peter’s cellular phone number…
They have a common denominator in that they are
responsible for
closing the financial tap on Bongani Peter, Wanini Khuza and Sicelo
Mbulawa.”
7.
This is the sum total of the “evidence” against the
appellant, as
accused number three, and, in addition, the appellant
alleged that the so-called “confession” given by him was
done
after he was tortured by members of the South African Police
Services.
8.
The appellant, at a stage, abandoned his appeal after he was
allegedly threatened
by officials while he was in custody and brought
a fresh application for bail before the court
a quo
.
9.
In his judgment, the presiding Magistrate gave reasons for his
failure to release
the appellant on bail and appeared to list all the
factors that are listed under section 60(4) of the Criminal Procedure
Act (“CPA”)
and came to the following conclusion, without
analysing the facts as they were relevant to the factors listed:
“
I have
considered the evidence presented before me in this matter and I find
that prima facie the State does not lack of a strong
case against the
applicants and on the contrary, the applicants themselves have not
been able to succeed to show that the case
is weak against them. I am
therefore not persuaded that there is presence of exceptional
circumstances adduced by the applicants.”
10.
Mr Ntelwa, who appeared on behalf of the State in the present bail
appeal, confirmed that
the appellant was not the manager in charge of
the department at the university and initially was two levels below
the manager,
and eventually one level.
11.
When Mr Netlwa was asked to point out, in the record, the strength of
the State’s
case against the appellant, his argument was that
the appellant had driven passed the house of one of the deceased and
had shown
one of the hit men the house of the deceased. Although
reference is made in the record to the appellant driving passed the
house,
by the investigating officer, there is no mention in the
record of the appellant pointing out the address of the deceased to
any
hit men.
12.
Mr Ntelwa then alleged that the record was incomplete, and this was
disputed by Mr Daubermann,
acting on behalf of the appellant. Mr
Daubermann confirmed that he in fact had completed the record after a
previous failed attempt
by previous representatives, and there was
nothing missing in the record, and no complaint had previously been
received from Mr
Ntelwa of an incomplete record, (or a complaint from
anyone else).
13.
Mr Ntelwa properly conceded that the appellant’s personal
circumstances are not disputed
and that the strength of the State’s
case against the appellant is the reference by the investigating
officer to the driving
passed of one of the deceased’s house,
and the alleged “confession”.
14.
Mr Daubermann correctly argued, in my view, that no details are given
of the alleged confession
and it was impossible for the court
a
quo
, or this court, to take into account a “
confession
”
without the necessary details. The confession was referred to in the
record in very general terms and the appellant had,
in any event,
alleged that anything that may have been said by him to officials of
the South African Police Services were done
in circumstances where he
had been tortured. This is an aspect of the matter that will be dealt
with in the trial court and before
the trial judge in due course. I
am inclined to agree with Mr Daubermann that there is no evidence
placed before me which allows
this court to come to the conclusion
that there is evidence of a confession.
15.
Although Mr Daubermann raised the issue of the charge sheet in his
heads of argument, and
which was then motivated in argument, Mr
Ntelwa handed in an “amended” charge sheet which
apparently was handed in
before the presiding Magistrate.
16.
The relevance of the charge sheet is whether the charges were
schedule 5 or schedule 6 offences
in terms of the CPA. Mr Daubermann
argued that none of the allegations in the initial charge sheet
brought any of the charges within
the ambit of schedule 6, in
particular, there was no allegation in the charge sheet that the
alleged murders were premeditated
or committed by a group of persons
acting in furtherance of a common purpose. In his view, the presiding
Magistrate had misdirected
himself in finding that the appellant had
been charged with a schedule 6 offence and which then had the
consequence of an onus
being placed on the appellant to prove the
existence of “
exceptional circumstances”
as
envisaged in section 60(11)(a) of the CPA.
17.
Section 65(4) of the CPA provides as follows:
“
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 will
give the decision which in its or his opinion
the lower court should
have given.”
18.
In S vs Barber 1979(4) SA 218(D) at 220E, the court held as follows
in this regard:
“
It is well
known that the powers of this court are largely limited where the
matter comes before it on appeal and not as a substantive
application
for bail. This court has to be persuaded that the Magistrate
exercised the discretion which he has, wrongly. Accordingly,
although
this court may have a different view, he should not substitute his
own view for that of the Magistrate because that would
be an unfair
interference with the Magistrate’s exercise of his discretion.
I think it should be stressed that, no matter
what this court’s
own views are, the real question is whether it can be said that the
Magistrate who had the discretion to
grant bail, exercised that
discretion wrongly.”
19.
It is therefore clear that a court hearing an appeal against the
refusal of bail is at liberty
to undertake its own analysis of the
evidence in considering whether the appellant has discharged the onus
resting upon him in
terms of section 60(11)(a) of the Act.
20.
In Chiediebeze vs S (BA18/20) [2020] ZAMPMHC 34(29 July 2020), at
paragraph 13, the court
held as follows:
“
A court cannot
find that the refusal of bail is in the interests of justice merely
because there is a risk or possibility that one
or more of the
consequences mentioned in sub-section (4) will result. The court
cannot grope in the dark and speculate; a finding
on the
probabilities must be made. Unless he can be found that one or more
of the consequences will probably occur, detention of
the accused is
not in the interests of justice and the accused should be released.”
21.
Section 35(1)(f) of the Constitution provides the principal template
against which chapter
9 of the Act must be measured. It reads as
follows:
“
Everyone who is
arrested for allegedly committing an offence has the right…
(f) to be released from detention if the interests
of justice permit,
subject to reasonable conditions.”
22.
Section 60(1)(a) of the CPA provides as follows:
“
60.
Bail application of accused in court.
(1)(a) an
accused who is in custody in respect of an offence shall, subject to
the provisions of Section 50(6) be entitled
to be released on bail at
any stage of the proceedings of his or her conviction in respect of
such offence, if the court is satisfied
that the interests of justice
so permit.”
23.
Section 60(4) of the Act provides, in turn, that the interests of
justice do not permit
the release from detention of an accused, where
one, or more, of the grounds set out therein are established.
24.
Sections 60(5) – (9) of the Act makes further provisions and
factors which are to
be taken into account, and these are extensive.
25.
In Tshofoti vs S (A281/2021) [2022] ZAGPPHC124 (4 February 2022) the
following was stated:
“
It cannot be in
the interests of justice for bail to be denied in circumstances in
which it is common cause that none of the likelihoods
referred to in
Section 60(4) of the CPA exists. The absence of any of the
likelihoods referred to in Section 60(4) of the CPA.
constitutes, in
itself, (exceptional circumstances)”
.
26.
The fundamental objective of the institution of bail in a democratic
society based on freedom
is to maximise personal liberty and the
proper approach to a decision in a bail application is that a court
will also grant bail
where possible, and will lean in favour of, and
not against the liberty of the subject provided that it is clear that
the interests
of justice will not be prejudiced thereby.
[1]
27.
In S vs Branco 2002(1) SACR(W) 532H, and further, the court stated
the following:
“
It must be
borne in mind that any court seized with a problem of whether or not
to release a detainee on bail must approach the
matter from the
perspective that freedom is a precious right protected by the
Constitution. Such freedom should only be lawfully
curtailed if “the
interests of justice so require””
.
28.
The appellant adduced evidence by way of affidavits in the court
a
quo
and the respondent adduced evidence, opposing bail, by way of
affidavits by the investigating officer.
29.
In his founding affidavit, the appellant specifically alleged that
the State does not have
a strong case against him. This was a direct
challenge to the State to prove otherwise.
30.
In S vs Mauk 1999(2) SACR 479(W) 481j – 482d, the court
inter
alia
held as follows:
“
An accused will
succeed in proving “exceptional circumstances” if he is
able to show, by adducing acceptable evidence,
that the State’s
case against him is non-existent, or subject to serious doubt. Where
the accused evidence stands alone,
then the suggestion of the State’s
case is non-existent or doubt will become almost a foregone
conclusion. If the State does
not lead evidence in rebuttal, it is
difficult to see how it can be said that the accused has not
succeeded in discharging the
onus. The fact that the evidence before
court is infused with probabilities indicating that the accused may
have been falsely implicated,
especially where the State adduced no
significant rebutting evidence (as in casu), can scarcely be regarded
as anything other than
exceptional.”
31.
I have dealt with the investigating officer’s allegations in
regard to the appellant’s
involvement above, it is clear from
the evidence given to the court
a quo
that the only “
evidence
”
was that the appellant was part of a group that “
sat down
and planned the smearing of the Vice-Chancellor and his killing if
that did not work”
.
32.
The investigating officer’s reliance on confessions of three
“
hit
men
”
to show that the appellant was involved in the commission of the
alleged offences, also appears to be misplaced because
the said
confessions cannot be used against the appellant in evidence under
the circumstances.
[2]
33.
The appellant’s evidence also to the effect that he was
tortured by the police and
instructed to admit that he knew the
killers of the late Mr Vesele and the late Mr Roets was also
unchallenged by the respondent,
and must accordingly be accepted.
34.
I am in agreement with Mr Daubermann that if the State had any
evidence implicating the
appellant in the commission of the alleged
offences, the investigating officer would have set such evidence out
in detail, which
he has failed to do. I am further in agreement that
there is no evidence whatsoever implicating the appellant in the
commission
of the alleged offences.
35.
The investigating officer’s reasons for opposing bail are also
unsupported by any
evidence and general remarks. He fails to
distinguish between the multiple accused, and the appellant, and
generally makes sweeping
statements about all of them as a group.
36.
The investigating officer’s evidence does not show, on a
balance of probabilities,
that any of the “
likelihoods”
referred to in Section 60(4) of the Act exist in this matter.
37.
In view of the State’s poor prospects of success against the
appellant there certainly
cannot be any suggestion that the appellant
is accordingly likely to flee and not stand trial.
38.
As the appellant has no relevant previous convictions, or any other
cases pending against
him, it is not understood how the investigating
officer could have alleged that he has a “
propensity to
commit further crimes”
and that “
there is a strong
likelihood”
and that he “
will commit crimes at the
university”
. No evidence was given for these sweeping
statements.
39.
The appellant’s personal circumstances, as set out above, in my
view, also favour
the granting of bail and renders it unlikely that
he will abscond and not stand trial.
40.
The presiding Magistrate also did not conduct a proper analysis of
the evidence as he found
that the investigating officer testified
that the appellant made a confession, which is incorrect. The
appellant’s evidence
in this regard was as follows:
“
Mbulawa was
given the task of organising hit-men. He promised to bring his
Mthatha guys. All three have confessed about the killing
of Roets.”
41.
There can be no doubt that the investigating officer was referring to
the alleged hit men
and not the appellant. If the respondent seeks to
rely, in a bail application, on a confession then it must at least
prove that
the confession is
prima
facie
admissible in evidence against the maker thereof.
[3]
42.
The investigating officer did not say to whom the confessions were
made, or even that they
will be admissible in evidence against the
makers thereof. In fact, his evidence is that the three had confessed
about the killing
of Roets, and not that they had confessed to
killing Roets.
43.
In ay even, any confession which may have been made is questionable
in that the allegation
is that it was not made freely and
voluntarily.
44.
On the 7
th
of June 2022 my brother Laing J handed down a judgment where one of
the appellants’ other co-accused appealed against the
refusal
to grant bail.
[4]
45.
In that matter the court found that there was no evidence at all, on
the record, that the
appellant (in that matter) would endanger the
safety of the public or particular person, or commit a schedule 1
offence. There
was also no evidence that the appellant, in that
matter, had a disposition towards violence.
46.
Further, Laing J had the following to say:
“
[22]
Ultimately, the State bore the onus. Very little evidence was placed
before the court a quo to indicate that
the likelihood that the
events listed in Section 60(4) would occur was more than mere
speculation. Crucially, the legal representatives
for the appellant
argued that the latest testimony was, in the main, undisputed. From
the record, it seems that the State was focused
more on the merits of
the case and the fact as listed in Section 60(4) to (9) of the CPA.
Consequently, the facts alleged by the
appellant must be accepted as
true.”
47.
In that matter the appeal was upheld and the appellant was released
on bail with various
conditions attached thereto.
48.
In a second matter before my brother Govindjee J, handed down on the
3
rd
of November 2023, accused number two in this matter,
was also released on bail.
49.
With regard to the charge sheet Govindjee J stated that following:
“
[6]
As was the case in that matter, the Magistrate’s decision to
apply schedule 6 was
erroneous. This is because there was no
reference in the charge sheet to the crime of murder “whether
planned or premeditated”
or when “committed by a person,
group of persons or syndicate acting in the execution or furtherance
of a common purpose
or conspiracy.” The state argued that this
might be implied from the bail proceedings and from the very fact
that the appellant
was charged together with other accused. It was
also submitted that the appellant had not suffered any prejudice
because of the
charge sheet omissions.
[7]
Those arguments are, in my view, without merit. A similar occurrence
was recently
pronounced upon by my brother, Laing J. The learned
Judge relied on the constitutional right to be released from
detention if the
interests of justice permit, subject to reasonable
conditions, the accused’s fair trial rights, including the
right to be
informed of the charge with sufficient detail to answer
it, and the essentials of the charge as described in S84(1) of the
CPA.
The court added that these rights extended to bail application
proceedings, so that an accused person could respond appropriately
to
enable the court to determine whether the interests of justice
permitted release.
[5]
50.
With reference to the personal circumstances of the appellant in that
matter, Govindjee
J stated the following:
“…
the
appellant has been in custody since 9 April 2023, alleging brutal
treatment, including interrogation and violation of rights.
He has no
previous convictions or pending cases and there is nothing to suggest
that he knows any of the possible witnesses in
the matter, or the
location of any evidentiary material. He is legally represented and
indicates that he will leave matters in
respect of State witnesses to
the legal team and strictly comply with any bail conditions set.”
51.
In regard to the strength of the State’s case, Govindjee J
found the following:
“
In the present
circumstances, especially when considering the limited material
contained in the investigator officer’s affidavit
pertaining
specifically and directly to the appellant, the factors presented in
support of the application, and this appeal, are
compelling. Reliance
on the disputed confession was also appropriate in the present
circumstances, and there is little beyond this
suggestion of a strong
case against the appellant.”
52.
Bail was granted in that matter and subject to various conditions
contained in a draft order.
53.
I can find no evidence, on the record, that the appellant will
endanger the safety of the
public or a particular person, or commit a
schedule 1 offence. I can also find no evidence that links the
appellant to the offences
charged all indications are that the State
has weak prospects of success.
54.
There is further no evidence that the appellant has a disposition
towards violence and especially
in circumstances where he is 70 years
old, had worked for the university for thirty years, is a pensioner,
and has various dependent
children. As an owner of two properties,
presently married, and with various vehicles, there is no suggestion
whatsoever that he
is likely to be a flight risk.
55.
I can find no evidence on the record of the likelihood of the events
listed in Section 60(4)
of the CPA is relevant at all to the
appellant.
56.
The alleged brutal treatment and interrogation of the appellant also
seriously undermines
the suggestion of a “
confession
”,
even though the respondent failed to give any details of the
“
confession
”, even on a
prima facie
basis.
57.
Accordingly, the following order is made:
(a)
The appeal is upheld;
(b)
The order of the court
a quo
is set aside and replaced with
the following:
(i)
“The appellant’s application for bail is granted and he
is released
on bail, pending the completion of his trial;
(ii)
The following conditions apply:
(aa)
The appellant shall deposit the sum of R15 000.00 in accordance
with the provisions of Section
60(13)(a) of the CPA;
(bb)
The appellant is granted bail in the amount of fifteen thousand rand
(R15 000.00) in the said
case on the following conditions;
(1)
The appellant shall attend court at 09h00 on each and every date to
which the case is postponed
and remain in attendance until he is
formally excused;
(2)
The appellant shall report at a police station in NU12, Mdantsane,
between the hours of
06h00 and 18h00 on Monday every week;
(3)
The appellant shall reside at his home address in Mdantsane;
(4)
The appellant shall not leave the magisterial district of Mdantsane
without the written
permission of the investigating officer in the
case;
(5)
The appellant shall surrender his passport, if he has one, to the
investigating officer
and shall not apply for another passport;
(6)
The appellant shall not travel outside of the borders of the Republic
of South Africa.
(7)
The appellant shall not communicate, directly or indirectly, with any
State witnesses;
(8)
The appellant shall not influence, interfere with, intimidate or harm
any State witnesses.
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Attorney
for the Appellant
:
Mr.
Daubermann
:
Peter Daubermann Attorneys
Suite
701
Seventh
Floor
Oasim
South
Pearson
Street
Central
GQEBRHA
Counsel
for the Respondent
:
Adv.
Ntelwa
Instructed
by
:
The
Director of Public Prosecutions
Eastern
Cape Division
MAKHANDA
[1]
Chiedebeze
supra
and S vs Smith and Another 1969(4) SA 175 (N) at 177E - F
[2]
See Litako and Others vs S (584/2013)
[2014] ZASCA 54
;
[2014] 3 All
SA 138
(SCA); 2014(2) SACR 431(SCA); 2015(3) SA287 (SCA) (16 April
2014)
[3]
Motsi vs S(A37/22)
[2022] ZAWCHC 151
; 2023(1) SACR 218(WCC) at
paragraphs 35 - 36
[4]
Elias Cele vs The State, Case No: CA & R 38/2022
[5]
Sicelo Mbulawa vs The State, Case No: CA & R 161/2023