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[2019] ZASCA 193
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Rohde v S (1007/2019) [2019] ZASCA 193; 2020 (1) SACR 329 (SCA) (18 December 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1007/2019
In
the matter between:
JASON
THOMAS
ROHDE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Rohde v The State
(1007/2019)
[2019] ZASCA 193
(18 December 2019)
Coram:
Maya P, Van Der Merwe and Nicholls
JJA
Heard:
28 November 2019
Delivered:
18 December 2019
Summary
:
Bail – pending appeal – factors
to be considered –
whether there is a real prospect in relation to success on
convictions – whether appellant a flight
risk.
ORDER
On
appeal from:
Western Cape
Division of the High Court, Port Elizabeth (Salie-Hlophe J sitting as
court of first instance):
1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the
following:
‘
The
applicant’s application for bail pending his appeal to the
Supreme Court of Appeal is granted. The applicant’s release
on
bail is subject to the following conditions:
(a)
The
payment of the amount of R200 000 in terms of s 60(13)
(a)
of the
Criminal Procedure Act 51 of 1977
; and
(b) The furnishing of a guarantee in the amount of R1 million to the
Registrar of the Western Cape Division of the High Court in
terms of
s 60(13)
(b)
of the
Criminal Procedure Act;
(c
) The applicant shall prosecute his appeal in the manner and within
the time periods prescribed by the rules of court failing which
his
bail shall be cancelled forthwith;
(d) The applicant shall reside at his residential address at […]
Road, Plettenberg Bay;
(e) Should the applicant need to be in Johannesburg or Cape Town to
attend court cases or conduct business, he shall reside at
[…],
Lonehill in Johannesburg and at […], Greenpoint in Cape Town;
(f) The applicant shall notify the commanding officer of the
Plettenberg Bay Police Station in person two days prior to his
departure
when he is travelling to Johannesburg or Cape Town and will
set out the duration of such a stay, which period shall not exceed
five weekdays for each such stay away from Plettenberg Bay;
(g) The applicant shall report to the Plettenberg Bay Police
Station between the hours of 6 am and 6 pm on Wednesday and
Saturday
of each week;
(h) The applicant shall notify the Registrar of this Court in
writing, of any change of his residential, Johannesburg or Cape Town
addresses three days prior to any such change;
(i) The applicant shall report to the Plettenberg Bay Police
Station within 48 hours of a written notice to that effect being
served on his attorney of record, Mr D Witz of Witz Inc Attorneys,
1
st
Floor, The Conservatory, 13 Blake Street, Rosebank
(Tel: (011) 0100400, e-mail Daniel@ Witzinc.co.za) should his appeal
be unsuccessful
or partially unsuccessful and he has to undergo a
period of imprisonment; and
(j) The applicant is prohibited from applying for any passport.
3 This order must forthwith be made available to
the South African Department of Home Affairs and the British and
Australian Embassies
in South Africa.’
JUDGMENT
Nicholls
JA:
[1]
This is an appeal with the leave of this court against the refusal of
the Western Cape Division of the High Court (Salie-Hlophe
J) to grant
the appellant bail pending an appeal against his conviction and
sentence. In a highly published case the appellant
was found guilty
of the murder of his wife and obstructing the administration of
justice in that he concealed the murder to look
like a suicide. He
was sentenced to 20 years’ imprisonment.
[2] On
16 April 2019 the court a quo refused the appellant leave to appeal
his conviction. The appellant then applied to this court
for the
noting of a special entry and for leave to appeal against his
conviction and sentence. On 2 July 2019 the appellant’s
application for a special entry in terms of section 371 (sic) of the
Criminal Procedure Act 51 of 1977 (the CPA) was dismissed.
(The
reference to section 371 is clearly a typographical error and should
have been s 317 which entitles an accused person to apply
for a
special entry if any of the proceedings in the trial court were
irregular or not accordance with the law.) This Court, however,
granted the appellant leave to appeal against his conviction and the
resultant sentence.
[3]
This led to the appellant bringing a bail application premised mainly
on the fact that by granting leave to appeal, this court
had, by
implication, found that the appeal would have reasonable prospects of
success. The further grounds were that he was not
a flight risk; his
business interest would suffer if he remained incarcerated; he had an
unblemished record in that he had faithfully
complied with all his
bail conditions while out on bail prior to his conviction; and
insofar as relevant provisions of section
60 of the Act dealing with
bail were concerned, the necessary requirements had been answered in
his favour. The court a quo dismissed
the application, finding, inter
alia, that the appellant was a flight risk and that he had not
previously strictly complied with
his bail conditions.
[4]
The appellant’s first hurdle is that he bears an evidential
burden of showing that it is in the interests of justice that
he be
released on bail. This is because he has been convicted of a Schedule
5 offence which requires that an accused persuade the
court that it
is in the interests of justice to permit his release on bail.
[1]
Section 60(4) sets out the circumstances where the
interests of justice do not permit the granting of bail, including
the likelihood
of the accused evading his trial.
[2]
Sections 60(5)-(9) elaborate which factors a court
should take into consideration when considering the grounds in s
60(4).
[5] The
next difficulty for the appellant is his changed status. The
stark reality is that the presumption of innocence no
longer operates
in his favour. As stated by the court a quo:
‘
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 spares his
family the hardship and the indignity of welfare
and enforced
separation. It permits the accused to take an active part in planning
his defence with his counsel, locating witnesses,
proving his
capability of staying free in the community without getting into
trouble. This would include earning an income to maintain
his
financial needs as well as funding his legal expenses incurred in
consequence of his trial. Underlying this important rationale
is the
fact that the accused enjoys the fundamental right of being presumed
innocent.’
[6]
On conviction other considerations come to the fore. An increased
risk of abscondment once a person has been convicted and sentenced
to
a lengthy term of imprisonment is inevitable. The severity of the
sentence imposed will be a decisive factor in the court‘s
exercise of its discretion whether or not to grant bail. The notional
temptation to abscond (which confronts every accused person)
becomes
a real consideration once the length of the gaol sentence is
known.
[3]
[7]
In refusing bail pending appeal in
S v
Scott-Crosley
,
[4]
this court observed that the legislature’s
approach to bail pending appeal had become less lenient as reflected
in the
Judicial Matters Amendment Act 34 of 1998
. Similarly, the
Constitutional Court,
[5]
in upholding the constitutionality of
s 60
of the
CPA, found that the seriousness with which the legislature viewed
bail was underscored by the fact that there were major
amendments in
1995, 1997.
[6]
For first time in SA the bail legislation focused
not on the accused but the community. Clearly, said the
Constitutional Court,
the legislative intention was to curtail bail
for suspects charged with very serious offences and to this end
s 11
was introduced in 1995, and was replaced by even more stringent
provisions for persons facing serious charges listed in Schedule
5
and extremely serious charges listed in Schedule 6.
[8]
Being granted leave to appeal a conviction is an important
consideration but it is not, in and of itself, a sufficient ground
to
grant an accused bail. In terms
s 17(1)
of the
Superior Courts
Act 10 of 2013
, leave to appeal may only be granted where the judges
concerned are of the opinion that ‘the appeal would have a
reasonable
prospect of success, or there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on
the matter under consideration.’
[7]
Because no reasons are ever provided therefor, we
are unable to state categorically what were the grounds for granting
leave to
appeal. Even if one were to accept for present
purposes that the appellant has reasonable prospects of success, this
is but
one of the factors to be considered.
[9]
Although dealing with a Schedule 6 offence in
Masoanganye
v S
,
[8]
this Court held that what was of more
importance than merely being granted leave to appeal was the
seriousness of the crime,
the real prospects of success on conviction
and the real prospect that a non-custodial sentence may be imposed.
As to whether the
appellant was a flight risk, the Court went on to
say that:
‘
It
is important to bear in mind that the decision whether or not to
grant bail is one entrusted to the trial judge because that
is the
person best placed equipped to deal with the issue, having been
steeped in the atmosphere of the case.
’
This
is particularly apposite in this case which has run over 57 days
often with highly-charged emotions.
[10]
The same sentiment was expressed in
S v
Bruintjies,
[9]
albeit again in respect of a Schedule 6 offence
.
What was required was that the Court
examine all relevant circumstances and determine whether they,
individually or cumulatively,
amounted to an exceptional
circumstances justifying the appellant’s released on bail.
These included factors in his favour
such as a stable home and work
environment, strict adherence to bail conditions over a long period
and a previously clear record.
The Court said:
‘
The
prospect of success may be such a circumstance, particularly if the
conviction is demonstrably suspect. It may, however, be
insufficient
to surmount the threshold if, for example, there are other facts
which persuade the court that society will probably
be endangered by
the appellant’s release or there is a clear evidence of an
intention to avoid the grasp of the law. The
court will also take
into account the increased risk of abscondment which may attach to a
convicted person who faces the known
prospect of a long sentence.’
[11]
It is against this backdrop that the present bail appeal should be
considered. As in the court a quo, the main thrust of the
submissions
on behalf of the appellant was that the grant of leave to appeal on
the merits presupposes the existence of a reasonable
prospect of
success in the appeal. With a likely acquittal in the future it would
be extremely prejudicial for the appellant to
remain in custody, so
it was argued. Other considerations were that there is no likelihood
that he will abscond, and his financial
interests and concomitant
ability to provide financial support to his family would suffer. That
the appellant was prevented from
attending his trial and giving viva
voce evidence was, quite correctly, abandoned as a ground of appeal.
This is a concession well
made as it had no factual basis.
[12]
It is not this Court’s function, nor indeed is it even possible
in the face of a lengthy trial record which has not been
placed
before us, to second-guess the outcome of the appeal. The merits of
the appeal on conviction will be adjudicated upon in
due course by
this Court with the benefit of the entire transcript before it. For
present purposes what we have before us is a
judgment, spanning some
250 pages. The appellant’s version is that the revelations of
his infidelity drove his wife to suicide
by hanging whilst the state
has led medical evidence to show that the hanging occurred post
mortem. Suffice to say ex facie
the judgment, the conviction
cannot be described as demonstrably incorrect.
[13]
The pertinent question is whether the appellant is a flight risk
taking into account the factors in
s 60(6)
of the CPA. These are:
‘
(a)
the
emotional, family, community or occupational ties of the accused to
the place at which he or she is to be tried;
(b)
the assets
held by the accused and where such assets are situated;
(c)
the means,
and travel documents held by the accused, which may enable him to
leave the country;
(d)
the extent,
if any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e)
the question
whether the extradition of the accused can readily be effected should
he or she flee the across the borders of the
Republic an attempt to
evade his or her trial;
(f)
the nature
and the gravity of the charge on which the accused is to be tried;
(g)
the strength
of the case against the accused and the incentive that he or she may
in consequence have to attempt to evade his or
her trial;
(h)
the nature
and gravity of the punishment which is likely to be imposed should
the accused be convicted of the charges against him
or her;
(i)
the binding
effect and enforceability of bail conditions which may be imposed and
the ease with which such conditions could be breached;
or
(j)
any other
factor which in the opinion of the court should be taken into
account.’
[14]
We know the nature and gravity of the punishment - the appellant has
been found guilty and faces the prospect of 20 years in
prison. There
is no possibility of a non-custodial sentence should his appeal be
dismissed. It is also on record how unpalatable
the appellant finds
conditions in prison. This must be taken together with the fact that
the appellant holds three different passports.
He has dual
citizenship with South Africa and Australia and has British
citizenship which he holds by virtue of England being his
country of
birth. He resided with his family in Australia for several years in
the 1990’s. We are informed that all three
passports are in
police custody and have expired. But this does not preclude the
appellant from renewing his passports. What is
important is that his
past life has been one of international mobility. Nor can it be
ignored that South Africa’s borders
are notoriously porous.
[15]
Section 60(6)
(e)
enjoins
a court to consider the ease with which extradition could be effected
if the appellant were to flee. Unfortunately bitter
experience has
taught us in South Africa that those with financial means are often
able to evade justice for years. There can be
no question of this
Court condoning a different set of rules for the rich and the poor.
[16]
The appellant’s financial situation is not entirely clear. He
has equity in a property in Plettenberg Bay. An international
bank
account has apparently been closed. The appellant and his mother each
have a 25% shareholding in one of South Africa’s
largest real
estate companies, Lew Geffen Sothebys International Realty. According
to the appellant he was the only one of the
four shareholders who
played an active role in the affairs of the company and without his
administrative and management skills,
it will continue to go downhill
and ‘inevitably fail’. Shortly after his arrest Mr Lew
Geffen terminated the appellant’s
services as CEO of the
company and has recently attempted to disqualify him as a director of
the company due to his criminal conviction.
The appellant has
appointed Mr Anton Mostert, an attorney, to attend to his interests
in his absence. There is further pending
litigation over a valuable
property owned by the King Edward Trust of which the appellant is a
beneficiary. Insofar as it is argued
that the appellant should be
released on bail to attend to these matters, the drafting of opposing
papers and legal consultations
can take place in prison and, in any
event, he has Mr Mostert to attend to his interests.
[17]
Prior to conviction in this matter, the appellant was released on
bail of R100 000 plus a bank guarantee in the sum of a million
rand.
We are informed that the appellant’s financial circumstances
have deteriorated to such an extent that he can now only
afford bail
in the sum of R50 000. To ask for more would be to render his right
to bail nugatory. If bail is to be fixed in an
amount sufficiently
high to deter accused persons from failing to serve their prison
sentences, it stands to reason that the amount
post-conviction should
be considerably higher than the amount prior to the conviction. The
appellant’s circle of family,
friends and business
acquaintances are undoubtedly wealthy and we are told have loaned him
money in the past. To suggest that the
appellant should now pay a
significantly lesser amount in bail is absurd lends itself to the
suspicion that his intention may be
to forfeit the bail.
[18]
As to family ties in South Africa, the appellant’s three
daughters reside in South Africa. They are all adults although
the
younger two attend university and are not self – supporting as
yet. Insofar as the appellant argues that he needs to
provide
material and emotional support to them, this has thus far been
provided by the extended family. It is not stated what emotional
support his children require from him nor is the nature of his
relationship with his family set out. No evidence has been placed
before court as to daughters’ current attitudes towards their
father. Even if it was their father’s infidelity which
drove
their mother to suicide, as he contends, this must be the cause of
great heartbreak and trauma for the children. According
to the State
the family of the deceased have turned against him. They are the ones
supporting the children.
[19]
The appellant believes he will be severely prejudiced by his further
incarceration. This may be the case if his appeal were
to take
several years and then result in an acquittal but there is no
compelling reason why the parties should not apply for an
expedited
date for their appeal. The State argues that the case against the
appellant is strong and there is nothing to keep him
in South
Africa. On his own version his business is in ruins and he has
no cash assets or assets ‘capable of being
realised in the
short term’. His former partner has made a bid for a hostile
takeover of his business. His family ties are
tenuous at best.
[20]
Bearing this in mind, and that courts are obliged to apply their
minds to a panoply of factors when considering bail, I am
of the view
that the appellant has not discharged the onus of showing that it is
the interests of justice that he be released on
bail. I am not
persuaded that, when one takes into account the factors set out in
s
60(6)
, that the appellant shown that there is no likelihood of him
evading his trial. In the circumstances his appeal must fail.
[21] In
the result, I would make the following order:
The
appeal is dismissed.
_________________
CH Nicholls
Judge of Appeal
Van
der Merwe JA dissenting
(Maya P
concurring):
[22]
I have had the benefit of reading the judgment of Nicholls JA. I find
myself in respectful disagreement with its reasoning
and order. As my
Colleague points out, s 60(11)
(b)
of
the Criminal Procedure Act 51 of 1977 (the CPA) is applicable. In my
view, for the reasons briefly stated below, the appellant
established
on a balance of probabilities that the interests of justice permit
his release on bail. In the result, he is entitled
to bail on
appropriate conditions and the court a quo erred in holding
otherwise.
[23]
First, on the facts of this matter, leave to appeal could only have
been granted on the merits thereof. Therefore we have to
accept that,
after having specifically applied their minds to this question, our
Colleagues concluded that there are reasonable
prospects that the
convictions may be overturned on appeal. They no doubt applied the
test set out in
S v Smith
2012 (1) SACR 567
(SCA) para 7:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and those prospects are not remote,
but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.’
[24]
Second, there is no likelihood that the appellant would abscond. All
his emotional and financial ties are with South Africa.
Apart from
the occasion in February 2018, which was amply explained by medical
evidence, the appellant at all times fully complied
with his bail
conditions. I fail to see how the fact that he could obtain passports
from any one of three countries, makes him
a flight risk. All three
of his passports have expired and are in the possession of the
police. The important features of the 2015
Rugby World Cup incident,
relied upon by the court a quo, are that after it was discovered at
the airport that his South African
passport had expired, the
appellant was nevertheless permitted to leave but he was allowed
re-entry into South Africa on his Australian
passport. In any event,
a bail condition that prohibits the appellant from applying for any
passport and making the order available
to the South African
Department of Home Affairs and the British and Australian Embassies,
should sufficiently cater for any risk
of abscondment. The important
point is that the respondent did not make any attempt in the
answering affidavits in the bail application
to show that the
appellant was a flight risk and at the hearing the respondent
expressly accepted that he was not.
[25]
Although the appellant was convicted of serious crimes, he is not a
flight risk. This Court has determined that he has real
prospects of
success on appeal and his convictions and sentences may well be set
aside. There are no other considerations that
point to the refusal of
bail pending the appeal. In the result bail pending the appeal should
be fixed on appropriate conditions.
[26]
The appellant’s initial release on bail was subject to payment
of the amount of R100 000 in terms of s 60(13)
(a)
of the CPA, as well as the furnishing of a guarantee in the amount of
R1 million in terms of s 60(13)
(b)
of the CPA. Logic dictates that these requirements should not be
relaxed in respect of bail pending the appeal. In fact, the
appellant’s
convictions justify an increase of the bail amount
of R100 000 to R200 000.
[27] In
the result the following order is issued:
1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the
following:
‘
The
applicant’s application for bail pending his appeal to the
Supreme Court of Appeal is granted. The applicant’s release
on
bail is subject to the following conditions:
(a)
The
payment of the amount of R200 000 in terms of
s 60(13)
(a)
of the
Criminal Procedure Act 51 of 1977
; and
(b)
The
furnishing of a guarantee in the amount of R1 million to the
Registrar of the Western Cape Division of the High Court in terms
of
s 60(13)
(b)
of
the
Criminal Procedure Act;
(c
) The applicant shall prosecute his appeal in the manner and within
the time periods as prescribed by the rules of court failing
which
his bail shall be cancelled forthwith;
(d) The applicant shall reside at his residential address at […],
Plettenberg Bay;
(e) Should the applicant need to be in Johannesburg or Cape
Town to attend court cases or conduct business, he shall reside
at
[…], Lonehill in Johannesburg and at […], Greenpoint in
Cape Town;
(f) The applicant shall notify the commanding officer of the
Plettenberg Bay Police Station in person two days prior to his
departure when he is travelling to Johannesburg or Cape Town and will
set out the duration of such a stay, which period shall not
exceed
five weekdays for each such stay away from Plettenberg Bay;
(g) The applicant shall report to the Plettenberg Bay Police
Station between the hours of 6 am and 6 pm on Wednesday and
Saturday
of each week;
(h) The applicant shall notify the Registrar of this Court in
writing, of any change of his residential, Johannesburg or Cape Town
addresses three days prior to any such change;
(i) The applicant shall report to the Plettenberg Bay Police
Station within 48 hours of a written notice to that effect being
served on his attorney of record, Mr D Witz of Witz Inc Attorneys,
1
st
Floor, The Conservatory, 13 Blake Street, Rosebank
(Tel: (011) 0100400, e-mail Daniel@ Witzinc.co.za) should his appeal
be unsuccessful
or partially unsuccessful and he has to undergo a
period of imprisonment; and
(j) The applicant is prohibited from applying for any passport.
3 This order must forthwith be made available to the South
African Department of Home Affairs and the British and Australian
Embassies in South Africa.’
_________________________
CHG Van der Merwe
Judge
of Appeal
APPEARANCES:
For the
Appellant: F Van Zyl SC and W King SC
Instructed
by: Witz Inc Attorneys, Rosebank
Michael
Du Plessis Attorneys, Bloemfontein
For the
Respondent: L J Van Niekerk
Instructed
by: Office of the Director of Public Prosecutions
Cape
Town
[1]
This should be distinguished from a Schedule 6
offence where an accused has to show exceptional circumstances exist
which justify
his or her release on bail.
[2]
S 60(4)
(b).
[3]
Bail
Johan van
den Berg, 3ed, para 14.4.
[4]
2007 (2) SACR 470
(SCA) para 6.
[5]
S v Dlamini; S v Dladla and others
1999
(2) SA 51 (CC).
[6]
Criminal Procedure Second Amendment Act 75 of
1995
and Criminal Procedure Second Amendment Act 85 of 1997.
[7]
Section 17(1
)(a)
of the
Superior Courts Act 10 of 2013
.
[8]
Masoanganye v S
2012
(1) SACR 292
(SCA) para 14.
[9]
2003 (2) SACR 575
(SCA) para 7.