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IN THE HIGH COURT OF SOUTH AFRICA MPUMALANGA
DIVISION, (FUNCTIONING AS LOCAL SEAT OF MIDDELBURG
CIRCUIT COURT)
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
29/07/2022_
DATE
_Mankge J___
SIGNATURE
Appeal Case Number: BA 10/2022
In the matter of:
THOKOZANE VAN DER MERWE
APPELLANT
And
THE STATE
JUDGMENT
MANKGE: J
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Introduction
[1]
This is an appeal against the decision of Magistrate Malemone of Bethal
Magistrate Court refusing to release the appellant on bail on 8 March 2022. The
order was made pursuant to a formal bail application wherein the evidence from
both sides was adduced by way of affidavits.
The charge
[2]
The bail proceedings reveals that the appellant was charged with one count of
contravening the provisions of Section 3 read with section 1,2, 50, 56(1), 56A,
57, 58,59, 60 and 61 of Act 32 of 2007 as amended, further read with Section
120 of Children’s Act, 38 of 2005.
[3]
The record of the proceedings reveals further that the appellant intends
pleading not guilty to the charges against him in the trial. The appellant went no
further then this in his application before the magistrate court.
The facts
[4]
The background facts of the appeal are briefly that a 08-year-old girl alleged
that she was raped by a known male by penetrating her anus with his penis.
The evidence of the investigating officer reveals further that the appellant was
pointed out to her by an aunt of the victim. According to the investigating officer
the appellant also cooperated with her when she arrested him at his house at
Emzinoni. The victim has since relocated to Witbank to her biological father,
and the investigating officer told the bail court that she is safe where she is.
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[5]
In the bail proceedings the investigating officer did not oppose bail and further
asked the court to release the applicant if the court found him a suitable
candidate for bail.
[6]
At commencement of the bail proceedings it was settled that the offence that
the appellant was charged with fell under Schedule 6 offences and the bail
application proceeded under this premise.
[7]
The Criminal Procedure Act provides that an accused person is entitled to apply
for bail, the Act further sets out the factors that needs to be considered by the
court in deciding whether bail is to be granted or not. In this bail the provisions
that were applicable is section 60(11)(a) which provides:
“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 permits his or her release”
[8]
In the court aquo the appellant contended that exceptional circumstances were
established, the appellant in this appeal contends also that he successfully
established these circumstances and that there was therefore no reason for the
magistrate to refuse him bail. The State in the court aquo did not argue much,
except to just submit that the appellant may be released on bail with certain
conditions.
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[9]
The State before this court, argued for the first time in this matter that, the
appellant failed to adduce evidence which satisfied the court that exceptional
circumstances exist which in the interest of justice permitted his release on bail.
The State contends further that the appellant has also failed to convince this
court that the magistrate’s court was wrong in not granting him bail, and that he
only furnished court with ordinary circumstances which even if they are taken
together do not constitute exceptional circumstances.
[10]
The provision of the Act makes it clear that the appellant bears the duty to
satisfy the court that the interest of justice does not require his further detention.
If it is found that the appellant established this fact, it follows therefore that this
court ought to find that the court a quo exercised its discretion incorrectly, in
which event this court as the court of appeal, can in consistent with the
legislation, interfere with the decision of the Magistrate.
[11]
Given the provisions of this section this court must enquire whether there is any
justification for the setting aside of the decision of the court a qou on the basis
that it was wrong. It is clear from this provision that the powers of this court are
limited on bail appeal. See also S v Barber 1979 (4) SA 218 (D) at 220 E-H
where the court in my view correctly stated the following:
“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”.
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[12]
In support of the contention that the magistrate was wrong in refusing his bail
the appellant allege that the Magistrate erred in refusing bail while bail was not
opposed by the State by also failing to take into account inter alia the following:
12.1
The fact that it was in the interest of justice to release the appellant of
bail since he proved exceptional circumstances which was not contested
by the State;
12.2
That the appellant was no a flight risk, he was the first offender, and that
he was not going to evade trial;
12.3
The magistrate was biased in refusing the appellant bail where the State
failed to rebut the accused bail application;
12.4
That the magistrate erred in refusing bail because the appellant elected
not to testify in person, but to submit an affidavit, despite the court
knowing that affidavit is allowed in court as evidence as along as it has
been properly commissioned;
12.5
That the magistrate failed to call the investigating officer during bail
application, and also erred in failing to ensure that the appellant get a
fair bail hearing;
12.6
By refusing the appellant bail because the investigating officer’s failure
to come and testify and tell the court the full story why the State is not
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opposing bail, despite the court knowing that it was not the appellant’s
duty to ensure that the investigating officer was present in court to testify;
12.7
By relying on the wrong principle in a case of the State v Mathebula
which says that “the applicant who says he is going to be acquitted must
prove on the balance of probability that he is going to be acquitted in
future” as there is nowhere in the appellant’s testimony where he alleges
that he is going to be acquitted in the future;
12.8
By misconstruing and failing to properly apply her mind to the facts and
evidence presented before her by the appellant;
12.9
In entertaining the merits of the case while called to determine the bail
application;
12.10 That the victim has already relocated, and that the court undermined the
appellants admissible evidence.
[13]
The Supreme court of Appeal by Shongwe AJA in S v Bruintjies 2003 (2)
SACR 575 (SCA) at para [7] stated the following which I find apposite in this
appeal before me: “The appellant failed to testify on his own behalf and no
attempts was made by his counsel to have him testify at the bail application.
There was thus no means by which the court a quo could assess the bona fides
or reliability of the appellant save by the say-so of his counsel” (Own emphasis
underlined).
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[14]
From the record it appears that the court a quo arrived at the decision to refuse
bail after finding there was no evidence that satisfied the court that interest of
justice permitted the release of Mr Van der Merwe.
[15]
The learned magistrate in her judgment stated the following: “Well this matter
is very much serious because it involves and eight year old. . . ” the learned
magistrate proceeded to state as follows “. . . What I will like to emphasize is
that I can safely state that the State did not present this case properly as far as
the seriousness of this case is involved. The investigating officer should have
come to testify and tell the court in full why is she not opposing to bail”. Also,
the court a quo concluded its judgment by stating that “I am not satisfied that
the applicant managed to satisfy to adduce evidence satisfying the court that
there are exceptional circumstances existing which in the interest of justice
permits his release on bail”
[16]
From the above evaluation, I find a clear indication that this court was placed in
a difficult position not only by the State, but it is also a clear indication that the
defence failed to also fulfill its core duty in terms of section 60 (11)(a) when
applying for bail.
[17]
Looking at the test in section 60(11)(a) it is easy to deduce from the above
evaluation by the court a quo that, the magistrate did consider what was
required of her by the Act when considering the application for bail before her.
It is also clear from her judgment that she concluded what she found to be in
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the interest of justice under the circumstances of the facts that were presented
before her.
[18]
It is also clear in her evaluation of the facts, that after she considered all that
was placed before her, that she found herself constrained to revert to the default
position provided for in the Act of, ordering that the accused be detained in
custody until he is dealt with in accordance with the law. It is also clear to
deduce from her judgment that this was all because of the absence of essential
effort by both the State and the defence to provide the court with information to
assess the bona fides or reliability of the appellant. In my humbly view this was
a just thing to do, as this is the standpoint provided for by section 60(11)(a).
[19]
The investigating officer did not oppose bail; she asked the court to release the
appellant if the court found that he is a ‘suitable’ candidate for bail. The
investigating officer’s attitude in my view was simply saying, ‘only if’ the
appellant has successfully made out a case that the interest of justice permits
his release, then the court can release him on bail.
[20]
This approach by the investigating officer I find it to also settling to the same
default position in terms of the provisions of section 60(11)(a). Then the court
eventually found the appellant not suitable for bail, and the court gave reasons
for this finding.
[21]
I find that the applicant’s contention that the magistrate erred in refusing bail
while bail was not opposed by the State, is a first sign that, the appellant is
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failing even at this stage of the proceedings to appreciate the test and the
responsibility that is placed on him by the provisions of section 60(11)(a).
[22]
I also find that the appellant’s contention that the magistrate was biased in
refusing the appellant bail where the State failed to rebut the accused bail
application is another indication that the appellant has a distorted
understanding of the bail provisions in terms of section 60(11)(a). There is no
such duty placed on the State, but the duty is rather placed squirely on the
shoulders of the applicant for bail.
[23]
The applicant’s argument that the magistrate misconstrued and failed to
properly apply her mind to the facts and evidence presented before her by the
appellant, I found it to be lacking in substance and negligible. I say so because
when one reads the judgement of the court a quo it is apparent that the leaned
magistrate interrogated the facts and the evidence before she arrived at the
conclusion she arrived at.
[24]
The appellant in this appeal is also contending that the magistrate failed to
apply her mind to the facts and evidence presented before her by the appellant.
The appellant in this regard goes further to criticize the court a quo that it erred
in alleging that the appellant’s testimony was not given under oath when
refusing bail, while (so they argue) the appellant’s affidavit was properly
commissioned.
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[25]
Section 60(11) is critical in the determination of this appeal and provides as
follows:
Section 60(11):
“Notwithstanding any provisions of this Act, where an accused is charged with
an offence referred to(b) in Schedule 5, but not 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 the interests of justice permit
his or her release”
[26]
It is clear from the record that the appellant was unable to adduce evidence that
satisfy the provision of section 60(11)(a). The test in this provision is obviously
on a higher standard than the one in section 60(11)(b). In the entire reading of
the record, it can easily be deducted that the appellant approached its
application in a nonchalant approach, an approach which is unsuitable for an
applicant who is faced with a high standard to meet. The applicant’s reliance
on the failure of the State to do anything is not helpful to the applicant’s course,
as the duty remained with him and him alone.
[27]
For the above reason alone, I choose not to interrogate the other reasons as
submitted by the appellant in applying for bail, as this will make no difference
to this court’s finding.
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[28]
I am not persuaded that the court a quo’s decision was wrong. In my humbly
view there is no need for this court to interfere with the court a quo’s decision.
In the contrary I find that the applicant neglected its key responsibility of
“adducing evidence which satisfied the court that exceptional circumstances
existed which in the interest of justice permitted his release on bail”.
[29]
The following remarks in S v Rudolph (supra) are appropriate in this matter:
‘The purpose of bail is to minimize the impact on an accused freedom at a stage
when he has not yet been convicted”. I am accordingly also of view that, even
though this should always play in the subconscious mind of any court seized
with bail application, however, the applicant for bail shouldn’t neglect his or her
duty in terms of section 60 of the Act.
[30]
The applicant for bail must not be found to have neglected his or her duty with
the hope that he will attempt to persuade the court during the appeal. His
primary focus in my view, should always be to endeavor to satisfy the court of
first instance. If he fails to do so, (like in this case) he should not be allowed to
do so at the appeal stage. Allowing this in my view will amount to unequivocally
undermining the court of first instance. Also, this can unduly strip the court of
first instance the powers given to it by the Act.
[31]
I have explained above that the court a quo did not misdirect itself in my
considered view, and that the appellant is the one who failed in its duty in terms
of section 60(11)(a) of the Criminal Procedure Act. This court is therefore
constrained in terms of Section 65(4) of the Act not to set aside its decision.
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