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2024
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[2024] ZAECMKHC 125
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Lategan v S (CA&R193/2023) [2024] ZAECMKHC 125; 2025 (1) SACR 513 (ECMk) (19 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Reportable
Case No.: CA&R
193/2023
Matters
heard on: 16 October 2024
Judgment
delivered on: 19 November 2024
In the matter between:
LOUIS
STEFANUS LATEGAN
Appellant
And
THE
STATE
Respondent
JUDGMENT
Zono
A J
Introduction
[1]
This bail appeal emanates from the Aberdeen Magistrates Court under
Case Number A573/2023.
I must mention at this early stage that two
bail applications were made by and on behalf of the appellant and
such bail applications
were made at different times, and both of them
were unsuccessful.
[2]
With regard to the first bail
application, a judgment was delivered on 14 September 2023
pursuant
to bail proceedings having been proceeded with by way of affidavits.
Parties filed their affidavits for consideration
by and the court
a
quo
which was duly addressed by counsels representing the
respective parties. The first bail application did not succeed.
[3]
Bail application based on new
facts was launched in the same Magistrates Court. Similarly,
affidavits were exchanged and the court
a quo
was addressed
based on those affidavits. That bail application too did not succeed
as the judgment thereon was delivered on 22
August 2024. Relevant to
this judgment, a notice of appeal was delivered on 12 September 2024,
wherein the appellant set out his
grounds of appeal. It is this
appeal that came before me on 16 October 2024. Both parties were
represented in court.
Brief
background
[4]
The appellant faces multiple
charges of rape
[1]
and
trafficking persons in contravention of Section 10(1) of the
Prevention and Combating of Traffic in Persons Act of 2013
[2]
;
counts of unlawful possession of more than 200 cartridges of a
firearm in contravention of Section 91(1) of the Firearm Control
Act
60 of 2000; counts of assault with intention to do grievous bodily
harm
[3]
.
[5]
The court
a quo
ruled
that the charges against the appellant fall within the ambit of
Schedule 6. The first bail application was accordingly dealt
with in
terms of
Section 60(11)
(a) of the
Criminal Procedure Act 51 of 1977
as amended. Similarly, the second bail application was dealt with
under Schedule 6, in terms of
Section 60(11)
(a) of the
Criminal
Procedure Act.
>
[6]
Section 60(11)
(a) of the
Criminal Procedure Act provides
:
‘
Notwithstanding
any provision of this Act, where an accused is charged with an
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 interest of justice permit his or her release.’
[7]
In what follows I deal with the
brief synopsis of the first bail application. That exercise
is
important because in dealing with the new facts one needs to know
what was before court in the first instance. Parties exchanged
affidavits and elected not to lead
viva voce
evidence.
Brief
synopsis of the first bail application
(1)
Founding affidavit
[8]
The appellant alleged that he
was 41 years old, having been born in Graaff-Reinet. He grew
up in
his family farm in Graaff-Reinet and Aberdeen district and he is a
well-known resident therein. He is the oldest son of his
parents. His
father passed away and his mother, who is suffering from cancer,
lived in Cape Town. He is a member of Dutch Reformed
Church
Congregation in Aberdeen.
[9]
Appellant’s marriage was
dissolved by a decree of divorce on 6 October 2020. From
his
marriage, two children were born on 28 August 2015 and 7 March 2019
respectively. His children are residing with their mother
who has
since remarried. His access to his children is regulated by a court
order.
[10]
The appellant left school before Matric and
started farming at the age of 18. He asserts that he earns a
living
from farming. He contends also that he farmed with his grandfather
who has since passed away and he has since been farming
on his own on
the farms - New Farm and Wynlaagte, of which he is a beneficial
owner. He further alleges that these farms are registered
in a Trust
of which he is a trustee and only beneficiary.
[11]
The farms are mortgaged in favour of Absa Bank to
the tune of R530 000.00. The appellant placed on
record that he
is a small-stock farmer farming sheep and angora goats. He cultivates
corn, maize and Lucerne when conditions permit.
During the protracted
drought period the appellant severely suffered a substantial loss on
his stock and consequently had no recourse
other than running up a
substantial account with the “
Co-op
”.
[12]
The appellant significantly placed on record that
he has a financial obligation towards the Co-op and desperately
needs
to generate his income which he is unable to do whilst incarcerated.
The appellant lamented about substantive farming loss
incurred
through his incarceration.
[13]
The appellant recorded that he has substantial and
significant amount and value of movable asserts and livestock.
He
categorically recorded that “
owing to my incarceration, I
was unable to timeously cultivate wheat or other crops. This resulted
in considerable losses due to
there being no current unharvested
crops for the season’s market”
.
[14]
The appellant alludes in his founding affidavit to
numerous perils challenging his farming, citing food
damage in his
farm and urgent need of income. He records that “
The loss of
an entire season cannot be recouped. Should my incarceration continue
much longer, I will surely miss another season
of planting and
reaping a lucrative harvest. And so the devastating losses will recur
year after year. In addition, tons of seeds
are deteriorating and
being infected by mite, thus being rendered worthless
”. He
further contends that “
The upshot of this prospect is that I
will forfeit the opportunity to earn an income from my crops, certain
for the next season,
and probably thereafter. My farms will go under,
my income flow will cease, my children, my mother and my workers and
their families
will suffer direly; my animals will perish. The
prospect is too ghastly to contemplate.
” He lamented about
suffering an irreparable harm should he remain in
custody/incarceration. He anticipated in his founding
affidavit what
he calls “
catastrophic consequences
” as a result
of his incarceration.
[15]
The appellant was replete in emphasising how
serious and prejudicial would it be should he be kept in custody.
He
stated all sorts of harms he would suffer as a result of his absence
in his farms. Auctions, market, sales etcetera were central
points in
his founding affidavit to underscore how he would lose out on income.
He even stated that he was on a verge of losing
everything as a
result of his incarceration. At least appellant sufficiently placed
before court
a quo
the nature of harm and prejudice he would
suffer as a result of his incarceration. Put differently, financial
prejudice and ruin
was a major point debated in appellant’s
founding affidavit. It is not necessary at this stage to refer to the
answering
and replying affidavits.
Judgment
on first bail application
[16]
In its judgment, the court
a quo
accordingly captures the financial and personal circumstances of the
appellant. I need not repeat that under this heading as I
have
succinctly dealt with those circumstances in the preceding
paragraphs. The court
a quo
does record appellant’s
personal and financial circumstances and how the appellant alleges
that he would suffer substantial
harm if not released on bail. That
appears at pages 3, 7 and 10 and other pages of the first judgment
for bail application.
[17]
At page 30 of the judgment the court
a quo
concludes as follows:
‘
When all the
factors, including the personal circumstances of the appellant before
court, are weighed up the applicant has not proved
on a balance of
probabilities that exceptional circumstances exist which permit his
release from detention. His circumstances singularly
as well as
cumulatively do not amount to exceptional circumstances.’
The
bail was accordingly refused. That judgment still stands.
Bail
application on new facts
[18]
The appellant in his founding affidavit states
that he intends to place new facts before the court
a quo
which were not available to him at the time of the previous bail
application which was heard in September 2023 and would on the
basis
of those facts and the facts already before the court
a quo
with regard to his previous bail application seek to be released on
bail.
[19]
The appellant raised the following in his founding
affidavit as new facts:
19.1 Lengthy period in
custody.
19.2 The management of
his farming operations and the losses incurred.
19.3 Inability to raise
finance.
19.4 Judgment against
him.
19.5 Financial ruin.
19.6 The appellant in the
same affidavit raised the issue of the Outshoorn matter and the fact
that the investigations therein are
concluded. He thereafter
suggested some bail conditions and bail amount.
[20]
It is my considered view that all of these facts are not new facts as
envisaged by the provision
notwithstanding that they are masquerading
as such. The approach is fallacious and amount to a ruse or stratagem
to revisit the
facts that previously served before the court
a quo
in the first bail application but failed. A careful reference to
facts that served before the court
a quo
during the first bail
application in the preceding paragraphs plainly demonstrates that the
purported new facts were considered
by the court
a quo
during
bail application. I am set out to briefly deal with those facts
hereinafter. All of these facts hinge on appellant’s
inability
to attend to his farms.
Lengthy period
[21]
Appellant states that he was arrested on 3 July
2023 and has been in custody for more than a year as an
awaiting
trial prisoner. Nothing is said about his bail being decided on
14 September 2023. He considers that period as an
inordinate lengthy
delay that has a negative effect on his ability to attend to his
farming operations and other income producing
activities. Appellant’s
inability to attend to his farming operations and other income
producing activities were dealt with
in the first bail application.
That fact is acknowledged by the appellant when he contends as
follows in his founding affidavit,
supporting bail application on new
facts:
‘… …
I
was deprived of my freedom and my ability to attend to my farming
operations and other income producing activities as
described
in my previous bail application
.’
This
put paid to whether or not this is a new fact.
[22]
Regarding the lengthy period, I find this point
unmeritorious. No time frame or stipulated time was ordered
by the
court
a quo
in the first bail application to be the time for
his detention. It clearly intended to order the detention of the
appellant until
he is dealt with in terms of the law. I am not alone
on this. Section 60(11) (a) of the
Criminal Procedure Act provides
:
‘
11, ….
Where an accused is charged with an 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.”
[23]
The appellant, like any other accused person may
properly be dealt with in accordance with or in terms of
the law
during his trial. In effect the appellant was remanded in custody
pending the finalization of his criminal trial. The default
legal
position is that an accused person facing a Schedule 6 offence must
be detained pending final determination of his or her
trial. Any
suggestion to the contrary may result in the absurdity.
[24]
The Constitutional Court in
Cool
Ideas
[4]
held as follows about the
interpretation of Statute:
‘
28 A
fundamental tenet of statutory interpretation is that the words in a
Statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
that
statutory provisions should always be interpreted purposively;
(b)
the
relevant statutory provision must be properly contextualised; and
(c)
all
statutes must be construed consistently with the Constitution, that
is where reasonably possible legislative provisions ought
to be
interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to the purposive
approach
referred to above in (a).’
[25]
The purpose of this provision is to detain the
suspect accused of a Schedule 6 offence until his trial is
finalized.
The only time he may be released from custody is when he demonstrates
to the court that exceptional circumstances exist
which in the
interest of justice permit his or her release. This provision
represents the gravamen of the legislature’s intensified
battle
against serious crimes. Bail applicants who are charged with offences
mentioned in Schedule 6 have an uphill battle
[5]
.
Once the accused fails to convince the court after having been given
a reasonable opportunity that exceptional circumstances do
exist
which in the interest of justice permit his release from custody, the
accused will invariably remain in custody until his
trial is
finalized.
[26]
One last important point in this regard is the
nature of a new fact in the context of a Schedule 6 offence.
Even if
it may be assumed that a prolonged investigation and trial is a new
fact in the ordinary bail applications, under Schedule
6 offences it
must be of such a nature that it constitutes an exceptional
circumstance as envisaged in
Section 60(11)
(a) of the
Criminal
Procedure Act. It
is unimaginable that prolonged trial preparations
and proceedings in serious complicated crimes can morph into an
exceptional circumstance.
There is nothing unusual and extraordinary
about that.
[27]
As Lord Stern said in “
ex
parte
Daly”
[6]
,
“
In
law, context is everything
”
.
This dictum was approved by the Supreme Court of Appeal in numerous
judgments
[7]
. The first bail
application was dealt with in the context of an accused/appellant
herein who is facing multiple charges relating
to rape of different
women at different times; trafficking in different persons at
different times; possession of more than 200
cartridges (evidence
showed that there is a rifle that has been concealed); assault of
different persons at different times with
intent to do grievous
bodily harm. It could not have been fathomed that trial preparations
of cases of such a high magnitude and
complexity can take short space
of time. This is the context in which appellant’s first bail
application was refused and
appellant remanded in custody. Lengthy
trial preparations and proceedings invariably occupied the mind of
the court
a
quo
when
it was ceased with the first bail application. Therefore, I
accordingly find that lengthy period is not a new fact. I reiterate
that even if it was a new fact, it would still not constitute an
exceptional circumstance in the context of
Section 60(11)
(a) of the
Criminal Procedure Act.
The
management of farming operations and losses incurred and inability to
raise finance
[28]
This ground too hinges on the farming operations
and income producing activities which has negative impact
on his
financial progress and development of his farms. This is
consequential upon appellant’s inability to attend to his
farms
to perform his day to day activities. The losses the appellant
complained of are directly linked to the refusal of the first
bail
application. When the first bail application was refused and the
appellant remanded in custody, that had an inherent consequence
on
appellant being unable to attend to his day to day operations on his
farms. His absence in his farms had an inevitable consequence
of him
loosing income. In a nutshell, this ground present nothing new as a
fact. It was expressly and or impliedly dealt with during
appellant’s
first bail application.
[29]
The financial and income loss adumbrated under
this heading was clearly foreseen and canvassed during the
first bail
application. The court
a quo
came to a conclusion that it does
not constitute exceptional circumstance which in the interest of
justice permit appellant’s
release. The only difference is that
at that time his loss had yet not occurred, now it is alleged to have
occurred, or is occurring.
[30]
Detainee’s inability to attend to his day to
day financial operations in his farm has a direct bearing
on the
detainee’s inability to raise finances. This ground too is not
unusual and extraordinary to engender exceptional circumstances.
Van
Zyl J in
Peterson
[8]
held “
when
as in the present case, the accused relies on new facts which have
come to the fore since the first or previous bail application,
the
court must be satisfied, firstly, that such facts are indeed new and,
secondly, that they are relevant for purposes of the
new bail
application. They must not constitute simply a reshuffling of old
evidence or an embroidering upon it. The purpose of
adducing new
facts is not to address problems encountered in the previous
application or to fill gaps in the previously presented
evidence.
”
Once it is found that the
facts in the second bail application are not new, bail application
must fail on that basis.
Judgments
and financial ruins
[31]
This ground is a repetition of previous grounds
dealt with above. Appellant’s founding affidavit in
the first
bail application dealt with the possibility of appellant’s
financial ruin and destruction. It is the “
financial
catastrophe
” he alluded to in his founding affidavit. It
cannot now resurface as a new matter or fact. The appellant brought
back those
facts by subterfuge. I find that recycling of those facts
cannot change their true nature as the facts that were previously
dealt
with in the first bail application. I am therefore unable to
uphold this point.
[32]
Having found that all what was raised in the court
a quo
as new facts were not at
all new facts, the court
a
quo
should
have dismissed appellant’s bail application and refused same on
that basis. I accordingly come to a conclusion that
this bail appeal
cannot succeed only on the point that there was no new fact brought
before the court
a
quo
.
Van Zyl J in
Peterson
[9]
had this to say “
where
evidence was available to the applicant at the time of the previous
application but, for whatever reason, was not revealed,
it cannot be
relied on in the later application as new evidence. If the evidence
is adjudged to be new and relevant, then it must
be considered in
conjunction with all the facts placed before the court in previous
application and separately”
[10]
.
Facts placed before court during the first bail application are of
upper most importance for the second bail application based
on new
facts.
[33]
Even if I am wrong on the finding I made above,
this bail appeal cannot succeed on other grounds. The starting
point
is the notice of appeal and the grounds raised therein which lack the
necessary flair to establish exceptional circumstances
which in the
interest of justice permit appellant’s release. The notice of
appeal is a regurgitation of the grounds that
were rejected by the
court
a quo
during the first bail application. They are
accordingly unmeritorious. I will revert to the ground of appeal
later in this judgment.
Bail
appeal
[34]
Bail appeal is governed by
Section 65
of the
Criminal Procedure Act 51 of 1977
as amended. The relevant
subsections, for purposes of determination of this case, are
subsection 1 and 4 which provide as follows:
‘
Appeal to
Superior Court with regard to bail
(1) (a) An accused who
considers himself aggrieved by the refusal by a lower court to admit
him to bail or by the imposition by
such court of a condition of bail
including a condition relating to the amount of bail money and
including an amendment or supplementation
of a condition of bail, may
appeal against such refusal as the imposition of such condition to
the superior court having jurisdiction
or to any judge of that court
if the court is not then sitting.’
… …
(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.’
[35]
Subsection 4 enjoins the court or a judge hearing
the appeal to set aside the decision of the lower court
refusing to
admit appellant to bail only if it 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.
Practically speaking, if I find that the court
a quo
was wrong
in refusing to admit the appellant to bail, I am enjoined to grant
him bail, fix bail amount and release him with appropriate
conditions.
[36]
I have dealt with the grounds upon which the
appellant relied as new facts. It worth’s repetition
that the
appellant is aggrieved only by the second judgment of the court
a
quo
which was determining appellant’s bail application
based on new facts. I have dealt above with what the appellant
considered
to be new facts, which I found that they are not.
[37]
It is fundamentally important that in cases where
accused person is facing Schedule 6 offences,
Section 60(11)
(a) of
the
Criminal Procedure Act applies
. The detainee can only be released
from custody if the alleged new facts disclose the existence of
exceptional circumstances which
in the interests of justice permit
the release of the detainee. Even if the new facts emerged during the
custody of the detained
accused person facing Schedule 6 offence, if
they are of such a nature that they do not disclose the existence of
exceptional circumstances
which in the interests of justice permit
the release of the detained accused person, they will not avail the
detainee to the release.
[38]
It is now trite that
Section 60(11)
(a) of the
Criminal Procedure Act places
a burden on the bail appellant to prove
that exceptional circumstances exist which in the interests of
justice permit his release.
The
onus
is discharged on a
balance of probabilities
[11]
.
The exceptionality of the circumstances must be such as to persuade a
court that it would be in the interests of justice to permit
bail
[12]
. It is further trite
that if there are no exceptional circumstances which in the interests
of justice permit the release of the
accused, the court is enjoined
to order the detention of such an accused until his or her trial is
finalised or evidence that satisfies
the court that exceptional
circumstances do exist is adduced
[13]
.
[39]
The exceptionality of the circumstances must be
with reference to the peculiar facts of the case. However,
the law is
settled that there is no definition that can be ascribed to the
concept of exceptional circumstances. Labe J in
S
v H
[14]
held as follows:
‘
Exceptional
circumstances must be circumstances which are not found in the
ordinary bail application but pertain peculiarly . .
. to an accused
person’s specific application. What a court is called upon to
do is to exercise all the relevant considerations
. . . as a whole in
deciding whether an accused person has established something out of
the ordinary or unusual which entitles
him to relief under
Section
60(11).
’
[40]
What must appear from the evidence is a
circumstance or circumstances pertaining peculiarly to the accused
person’s specific application. General facts or circumstances
applicable in the ordinary bail application are not without
more
satisfactory or sufficient to make accused person a candidate for
bail under
Section 60(11)
(a) bail application. Exceptionality of the
circumstances lies with the fact that they are unusual and out of the
ordinary
[15]
.
[41]
Generally speaking, “
exceptional
”
is indicative of
something unusual, extra-ordinary, remarkable, peculiar or simple
different. There are of course, varying degrees
of exceptionality,
unusualness, extra-ordinariness, remarkableness, peculiarity or
deference. This depends on their context and
on the particular
circumstances of the case under consideration. In
S
v Peterson
[16]
Van Zyl J said these
words with a view to attribute a meaning to the words “
exceptional
circumstances
”
[17]
.
[42]
I have come to the conclusion that detention
entails loss of liberty. In most cases a person who is detained
normally loses income and in some instances salary. Detainee’s
inability to continue with a normal life and carry out his
day to day
personal and financial affairs is a “
sine qua non
”
for and a consequence of detention. That is part and parcel and a
natural consequence of detention. I accept that this constitute
a
factor for consideration in normal bail applications under
Section
60(4)
of the
Criminal Procedure Act. It
is one of the factors
normally weighed up against others to establish if interests of
justice do permit release of accused person.
Under
Section 60
(11)
(a) and in Schedule 6 more needs to be shown.
[43]
A bail applicant is legislatively burdened with a
dual responsibility under
Section 60(11)
(a) of the
Criminal
Procedure Act. He
must show not only that exceptional circumstances
do exist, but also that interests of justice permit his release on
bail. Effectively
a conjunctive approach when dealing with bail
application under Schedule 6 is required. These two requisites, to
wit, exceptional
circumstances and interests of justice must be
present conjunctively or simultaneously. Absence of the other or one
requirement
may not avail the bail applicant to the release on bail.
[44]
Put differently, if it happens that the bail
applicant succeeds in establishing that exceptional circumstances
do
exist for his release on bail, but fails to show that interests of
justice permit his release on bail, applicant may not be
entitled to
the release on bail. The court must be satisfied that there is a
synergy and co-existence between exceptional circumstances
and
interests of justice.
[45]
The words used in
Section 60(11)
(a) of the
Criminal Procedure Act that
“
the
accused . . .. adduces evidence which satisfies the court that
exceptional circumstances exist which in the interests of justice
permit is or her release”,
denote
that subjective jurisdictional facts must be established before the
accused’s release on bail. This category of jurisdictional
fact
is rooted on the fact that “
the
empowering statute has entrusted the repository of the power itself
with the function to determine whether in its subjective
view the
prerequisite fact or state of affairs existed or not. Expressions
often used by the legislature to express this intent
are, e.g.
“
in his or her
opinion
”
or
“
if
he or she is satisfied that the particular fact or state of affairs
exist
”
[18]
.
In the absence of such preconditions or jurisdictional facts the
authority effectively has no power to act at all
[19]
.
On the facts of this case, the court would permit bail only if it is
of the subjective view that exceptional circumstances coupled
with
the interests of justice permitting the release of accused/appellant
do exist.
[46]
This brings me to one important issue which is not
meaningfully canvassed in the appellant’s affidavits
in support
of bail application and in the notice of appeal. This troubling
aspect of this bail application and appeal was not even
contained in
the appellant’s heads of argument. However, appellant’s
counsel was invited to make submissions thereon.
[47]
Affidavits opposing the grant of bail in favour of
the appellant make the following contentions:
‘
At this stage
there is one (1) charge of intimidation. The victim indicated in a
statement that she managed to get away from the
farm. She went to
stay at family members of the applicant. Whilst she was with them she
was called by the applicant and during
the call he said he will fetch
me by force and if she is keeping anything from him, she will shoot
her in the head. Thereafter
the family members requested that we must
move the victim to a different address. She was then placed in a Home
of Safety in Graaff-Reinet.
Because the applicant did not manage to
get hold of the victim thereafter, he called her parents continuously
trying to find out
where she was.”
[48]
These statements are worrisome and concerning. It is in the same
affidavit where it is alleged
that the appellant threatened one of
the victims that he would shoot her. Upon investigations by the
police it transpired that
one of the females who also worked for the
appellant was found presumably committed suicide on the farm.
[49]
In addition to that, an application for a
protection order in terms of Domestic Violence Act was recently
instituted by the prospective witness in this case. That domestic
violence matter had a bearing on this matter. Amongst the orders
that
were granted in the Domestic Violence case were the following:
‘
-
Not to threaten the complainant.
-
Not to insult the complainant.
-
Not to communicate with the complainant at all.
-
Not to post any insulting messages, videos on social media.
-
Not to damage the complainant’s property.
-
Not to contact the complainant.
-
Not to use social media platform to communicate with the
complainant.’
[50]
These serious orders, underpinned by allegations
are not at all meaningfully dealt with by the appellant.
I therefore
cannot find fault on the first court
a quo’s
judgment
when it found that:
‘
It means that
the likelihood that he will indeed attempt to influence the victims
exists. Not only this, but the likelihood that
if he is released on
bail he will undermine or jeopardise the objectives of the proper
functioning of the criminal justice system,
including the bail
system.’
[51]
A threat to kill someone who is an obvious witness and a victim in a
criminal case cannot be
taken lightly. We have a history in this
country of witnesses being killed. The finding that denied appellant
bail was not wrong.
I am, in these circumstances enjoined by
Section
65
of the
Criminal Procedure Act to
grant bail only when the judgment
of the court
a
quo
is
wrong. By necessary implication an appeal court cannot grant bail if
the judgment of the court
a
quo
is
not wrong
[20]
.
[52]
A point has been made on the affidavit opposing
first bail application that the appellant concealed his
rifle and was
later found with the relative. That is a clear manifestation that the
appellant is capable of interfering with, concealing
or destroying
evidence
[21]
.
[53]
It was argued on behalf of the state that the
presence of the appellant in the farm will induce fear on
the victims
who are residing on the farms. That fear will extend to those who are
hiding from the appellant for safety concerns.
I am mindful of the
fact that the appellant is accused of having flogging the victims. A
sight must not be lost of the fact that
someone on the appellant’s
farm was found dead, suspected of having committed suicide. That
manifests the egregious, oppressive
and fear inducing environment in
the appellant’s farm.
[54]
Lastly, a point was also made in the opposing
affidavit that a fellow inmate met with the investigating
officer and
informed him that the appellant planned to escape from lawful custody
and an amount of R50 000.00 was paid to
actuate that escape but
was unsuccessful. That manifests a likelihood that the appellant will
evade his trial. He is a flight risk.
Court
a quo’s
judgment is not at all wrong, accordingly I cannot find fault on it.
[55]
On the conspectus of all the above facts and law,
it behoves me to dismiss this appeal.
Order
[56]
In the result, I make the following order:
53.1 The appeal is
dismissed.
A S ZONO
ACTING JUDGE OF THE
HIGH COURT
Appearances
Counsel for the
appellant :
Adv. Van Zyl SC
Instructed by
: KUBAN CHETTY
INC.
163 Cape Road
Mill Park
GQEBERHA
(Ref.: Jenna/Natasha)
Counsel for
respondent :
Adv. Turner
Instructed
by
: National
Director of Public Prosecutions
High
Street
MAKHANDA
[1]
Where
he is accused of raping several women at different times.
[2]
Where
several persons were alleged to have been trafficked at different
times.
[3]
Where
different persons were allegedly assaulted at different times.
[4]
Cool
Ideas 1186 CC v Hubbard and Another
2014 (4) SA 474
(CC) paragraph
28.
[5]
Hiemstra’s
Criminal Procedure Act, pages 9-12, Issue 2.
[6]
R v
Secretary of the State for the Home Department,
ex
parts Daly
[2001]
UKHL 26
;
[2001] 3 All ER 433
(HL) at 447A.
[7]
Aktiebolaget
Hässle and Another V Triomed (Pty) Ltd
2003 (1) SA 155
SCA
paragraph 1; Minister of Home Affairs and Others v Scalabrin:
Centre, Cape Town and Others
2013 (6) SA 421
(SCA) paragraph 89.
[8]
S v
Peterson
2008 (2) SACR 355
paragraph 57.
[9]
S v
Peterson
2008 (2) SACR 355
(C) paragraph 58.
[10]
S v
Vesmaas
1996 (1) SACR 528
(T) at 531 E-G.
[11]
S v
Yanta 2006 (1) SACR 737 (TK).
[12]
S v
Peterson
2008 (2) SACR 355
(C) paragraph 56.
[13]
S v
Nwabunwanne
2017 (2) SACR 124
(NCK) paragraph 10; Mtengwane v S
(CA&R91/2023) [2023] ZAECMHC 68 (12 December 2023).
[14]
S v H
1999 (2) SACR 72
(W) at 77 E-F.
[15]
Mtengwane
v S (CA&R91/2023) [2023] ZAECMHC 68 (12 December 2023).
[16]
S v
Peterson 2008 (2) SACR 355 (C).
[17]
Natal
Joint Municipality Pension Fund v Endumeni Municipality
2012 (4) SA
593
paragraph 18.
[18]
Kimberly
Junior School and Another v Head of the Northern Cape Education
Department and Others
2010 (1) SA 217
(SCA);
2009 (4) All SA 135
(SCA) Paragraph 13.
[19]
Paola
v Jeeva N.O.
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) paragraphs 11, 14 and 16.
[20]
Section
60(5)
of the
Criminal Procedure Act 51 of 1977
as Amended.
[21]
Section
60(4)(c)
of the
Criminal Procedure Act as
Amended.