IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case NO: A49/2019
District Case No: BDSH1/189/06
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
In the matter between:
ANDREW ALTONDENE MARTINS APPLICANT
and
THE STATE RESPONDENT
Coram: Kholong AJ
Heard: 27 November 2024
Delivered: 17 December 2024
JUDGMENT
KHOLONG AJ
Introduction
1. Applicant is applying for bail pending his appeal of his conviction and
sentence meted against him amongst others under the Prevention of
Organized Crime Act 121 of 1988 (herein-after “POCA”) . Applicant had
previously been granted bail and upon conviction was called to surrender himself
to serve his sentence. He has now lodged leave for further appeal to the
Supreme Court of Appeal (“SCA”) after his appeal to this division from the
regional court on conviction and sentence was dismissed . Applicant’s leave to
appeal to the Supreme Court of Appeal is still pending that higher Court’s
approval.
2. In the interim, applicant seeks bail or if regard is had to his papers
“extension of bail” whilst his leave to appeal is lodged and considered by the
SCA.
Background
3. The applicant and four others had been charged and con victed under the
Prevention of O rganized Crime Act, Act 121 of 1998 and the Marine Living
Resources Act, Act 18 of 1998 and the Drugs and Drug Trafficking Act, Act
140 of 1992 . The Applicant was convicted on 17 July 2013 of contravention of
Section 2(1) (e) of POCA ( Count 2); two counts of contravening regulation
39(1)(a) of the Marine Living Resources Act, Act 18 of 1998 ( herein -after
“MLRA”) and two counts of contravening section 5(b) of the Drugs Act.
4. The record indicates that applicant was sentenced to 15 years
imprisonment in respect of count 2; 2 years imprisonment in respect of count 7
and 8. 5 years im prisonment in respect of count 5 and 9. The record indicates
that the regional court directed that the sentences in respect to counts 5, 7, 8 and
9 run at the same time. In effect sentencing him to 20 years imprisonment.
The Judgment on Appeal
5. The High Court hearing the appeal dismiss ed applicant’s appeal on
conviction and sentence amongst others by finding that applicant could not
specify the evidence that he had complained was incorrectly admitted nor could
he refer the Court to the relevant section in the record where this issue aro se.
The Court hearing the appeal found that his complaint of alleged admission by
the Court below of hearsay evidence incorrectly had to have regard to the fact
that section 3(1) of the Law of Evidence Amendment Act 45 of 1988 provides
for provisional admissio n of hearsay evidence and the fact that the person upon
whose credibility the probative value of such evidence depended, had testified
themselves to such evidence later in the trial, thereby making such evidence no
longer hearsay by the end of the trial. The Court hearing the appeal also noted
that the legal representative for applicant could not during the hearing identify the
hearsay evidence complained of. On sentence the Court held that before it could
interfere as a Co urt of a ppeal, the trial Court must have committed a material
misdirection, which it didn’t find on the evidence before it.
6. It is noteworthy that relevant to incarceration the Court hearing the appeal
observed that the sentences imposed in respect of appe llant’s convictions were
indicative of the seriousness with which the legislature considered the offences .
That although minimum sentence was applicable, it was not brought to
applicant’s attention and therefore was not imposed by the Court below . In
illustrating the point, it made example that for contravention of Section 2( 1) (e) of
POCA, the act provides for life imprisonment when section 5(b) of the Drugs Act
empowered the Court to impose imprisonment for a period not exceeding 25
empowered the Court to impose imprisonment for a period not exceeding 25
years. It thus concluded that the trial Court committed no material mis -directions
when sentencing nor was the sentence disturbingly inappropriate.
7. It is against the aforesaid backdrop of the judgement in the regional Court
and the findings in the a ppeal judgement that applicant requests this Court to
look at bail favorably given his circumstances pending the appeal to the SCA.
8. Counsel for applicant in argument concedes that applicant is convicted
with an offence of which section 60(11)(b) of the Criminal Procedure Ac t1 is
applicable. This section provides that where an accused is charged with an
offence referred to in schedule 5 the Court is compelled to order if regard is had
to ordinary meaning of the word “ shall order ” that the accused be detain ed in
custody until he or she is dealt with in accordance with the law, unless the
accused, having been given reasonable opportunity to do so, adduces evidence
which satisfies the Court that it is in the interest of justice to permit his or her
release. It was held in S v Yanta2 that in discharging this onus, the accused must
show on a balance of probabilities that ordinary circumstances in the interest of
justice exist, which justifies his release on bail.
9. Counsel for applicant , in argument , inter alia submitted that this Court
must consider that section 60(4) of the Criminal Procedure Act (“CPA”) is not
applicable as applicant is not a danger to the safety of the public ; could not
evade arrest; intimidate witnesse s; jeopardize proper functioning of the crim inal
justice system, including the bail system nor disturb public order. Counsel was at
pains to point to this Court that section 60(5) ;(6);(7) and (8) CPA requirements
are mere guidelines and not prescriptive.
10. Counsel on behalf of applicant further pointed out that applicant has ties to
the community of the Western Cape. That his surrender to prison following
dismissal of his appeal took place without a warrant being issued. That he had no
outstanding warrants; is not a flight risk; at 48 years of a ge, he had depende nt
1 Act 51 of 1977.
2 2000 (1)SACR 237 (Tk).
children; that his family looses financially from his inability to generate income
whilst he remains in prison awaiting his appeal; that he has c hronic medical
condition. It is on t hese basis that applicant seeks his release, even with
reasonable conditions, if the Court so deemed fit.
11. Counsel for applicant referred this Court to the authority in S v Dlamini3 to
advance the argument that the Cons titutional Court noted that not only the
innocent, as he argued, are entitled to be released on bail pending trial.
12. In opposition, Counsel on behalf of the state submitted that application for
bail must be considered in the light of the circumstances that exist at the time the
application for bail is made . She argued that applicant has been convicted and
sentenced of ve ry serious crimes. That the Court is compelled to exercise its
discretion judicially having taken into account the totality of facts and
circumstances in order to arrive at a proper discretion. That it w as significant for
the Court to consider that applicant’s status had changed since he had first
applied for bail as he has now been convicted and sentenced to imprisonment for
20 years. She further contended that the Court had to consider whether there
were reasonable prospects of success on further appeal to the Supreme Court of
Appeal.
The Law
13. Section 321 (1) provides that the execution of the sentence of a superior
Court shall not be suspended by reason of any appeal against a convi ction or by
reason of any question of law having been reserved for consideration by the
Court of Appeal unless:
“(b) the Superior Court from which the appeal is made or by which the
question is reserved thinks fit to order that the accused be released on bail
3 S v Dlamini 1999 (4) SA 623 (cc).
or tha t h e be treated as a convicted prisoner until the appeal or the
question reserved has been heard and decided…”.
14. Evidently S ection 321 contemplates a different scenario in respect of a
convicted person in a manner that is different to those of an accused p erson
applying for bail as contemplated in Section 60 of the CPA. Section 60 deals with
an accused person who is still presumed innocent whose rights to freedom of
movement and economic activity must be interrupted, if needs be, with great
circumspection g iven the considerations set out in that section. When section
321 deals with a person already convicted of a crime or crimes. For what it is
worth, guidance to the extent it may be relevant can be explored from
consideration of how our Courts looked at the question of bail, in respect of
accused persons still presumed innocent. This is so especially given how
counsel fo r both the state and the applic ant made argument premised on this
section of the CPA. Section 60(11)(b) of t he Criminal Procedure Act provides
that:
“Notwithstanding any provision of this Act, where an accused is charged
with an offence referred to-
(b) in schedule 5 but not in schedul e 6, the Court shall order that th e
accused be detained in custod y 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 the
interests of justice permit his or her release”.
15. Salie-Hlophe J in Rohde 4 held that applicant in that matter had the
evidential burden of demonstrating that it is in the interest of justice to be
released on bail. The Court found in that matter that the accused had the
evidential burden given that he had been convicted of a schedule 5 offence to
show that it is in the interest of justice that he be released on bail. The Court
4 Rohde v S (2019) JOL 45444 (WCC).
noted that Section 60(4) sets out circumstances where the interests of justice d o
not permit the granting of bail. That section 60 (5) -(9) outlines which factors a
Court should take into account when considering the grounds in section 60(4).
16. It appears from the aforementioned dictum that the changed status of a
person from being accused person thereby presumed innocent to being
convicted is relevant in a Court’s exercise of its discretion and presents its own
hurdle which applicant had to overcome as the presumption of innocence no
longer operates in his favor. The Court noted the following:
“Pre-trial release allows a man accused of crime to keep the fabric of his
life intact, to maintain employment and family ties in the event he is
acquitted or given a suspended sentence or probation. It spar es his family
the hardship and indignity of welfare and enforced separation underlying
this rationale is the fact that the accused enjoys the fundamental right of
being presumed innocent”.
17. Salie-Hlophe J in Rohde distinguished the fact that in circumstances
where an accused is convicted is different to those wh ere he is presumed
innocent. It distinguished on the facts of that case S v Essop 5 where the
application for bail was unopposed by the state and found as held in S v Scott-
Crossly6 that the prospects of success do not in itself amount to exceptional
circumstances as envisaged in the CPA. That the Court had to consider all the
relevant factors and determine whether individually and cumulatively they
constitute exceptional circumstances.
18. On the fa cts of Rohde, the Court held that 20-year sentence is
undoubtedly a lengthy period of incarceration which the Court had to have regard
to. That the fact that the state did not present evidence that Rohde is a flight risk
5 2018 SACR 99.
6 2007 (2) SACR 470 (SCA).
is not in itself dispositive of that possibility . That the onus is on the applicant to
prove that it would be in the inte rest of justice to release him on bail. That failure
and success on appeal are both equal possibilities that are not mutually
exclusive. Bail was consequently denied in that matter as the Court took the view
that the evidential burden was not discharged to the Court’s satisfaction and that
it was in the interest of justice to release him on bail.
Analysis of the Evidence
19. The facts of this case point to applicant having been convicted and
sentenced to an effective 20-year imprisonment. Accordingly, as contemplated in
section 321 of the CPA the conviction and sentence are not suspended pending
the appeal unless this Court thinks fit upon presentation of an appropriately
compelling case. It is common cause that Mr. Martins has now been convict ed
and sentenced to 20 years . He is not an accused person presumed innocent.
This Court can therefore not find credence in the argument by counsel for the
applicant that he has previously been granted bail and didn’t abscond.
Circumstances have self -evidently changed. Counsel argued that he handed
himself in when called to do so without a warrant for his arrest being issued.
20. This court considers that conviction and sentence changes the
circumstances and the onus is on applicant to prove that it is in the interest of
justice to be rel eased on bail. This court is not satisfied on the evidence
presented that applicant has discharged that onus if proper regard is had to the
basis of the Court hearing the appeal’s dismissal of his appeal . The reasons for
appeal court’s dismissal of Mr. Mar tins appeal cannot be ignored by this Court
considering its assessment that there were no merits to the appeal from the
Court below. It is considered relevant that the appeal court found no basis nor
evidence that hearsay evidence on the facts of that case were incorrectly
evidence that hearsay evidence on the facts of that case were incorrectly
admitted. It found no irregularity that justified its interference with the conviction
and sentence.
21. It is not lost to this court that h aving examined the re cord, the Court
hearing the appeal found that applicant has been charged with a number of very
serious c rimes which the Court consid ered carried minimum sentences , which
fact if having been duly factored by the Court below may have possibly resulted
in an even lengthier sentence by the applicant. This point is relevant to this
Court’s weighing of the question of prospects of success on conviction and
sentence and also possibilities of abscondment in the light of this appeal
judgement. This Court accepts that applicant voluntarily handed himself over
when called to do so . It is, however, equally relevant that the prospects of
success are as balanced as those of failure in the event the SCA were to grant
his application for leave to appeal. This question of prospects, if it is considered
that two separate Courts found against the a pplicant on the same set of facts ,
must be weighed objectively by this Court. The balance on the evidence, appears
to this Court not to favor applicant. This factor in itself increases the risk of
abscondment, which must be considered in deciding to grant bail. This Court
thus finds no compelling reason in the interest of justice to grant bail without
having to undermine the bail system and proper functioning of the criminal justice
system.
Conclusion
22. In the result this Court is not persuaded with the facts before it that they
are sufficiently compelling to justify interrupting applicant’s sentence . On the
contrary, the interest of justice require that he should continue serving his
sentence.
23. Wherefore the application for bail pending the SCA’s decision to consider
hearing the appeal must fail and I order as follows:
IT IS ORDERED THAT:
1. The application for bail is dismissed.
SST KHOLONG
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA WESTERN CAPE DIVISION,
CAPE TOWN
APPEARANCES:
For the Applicant: Mr. A. Paries
Instructed by: R Davies Attorneys
For the Respondent: A Du Preez
Office of the Director of Public
Prosecutions: Western Cape