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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

C & R: 332/2010

Date Heard: 15/12/12

Date Delivered: 21/12/12

In the matter between:

MBULELO MAKIBI ….....................................................APPELLANT

Versus

THE STATE ….............................................................RESPONDENT

REASONS FOR ORDER GRANTED ON 17 DECEMBER 2010

SMITH J:

On the 17^th of December 2010 I made an order allowing the appellant's release on bail on certain conditions and indicated that reasons would follow. I now provide the reasons for my decision.

[1] The appellant has been charged in the Indwe Magistrates’ Court with the rape of his six year old daughter. He applied for bail on 20 October 2010. His application was heard and refused on that same day.

[2] Rape being a schedule 6 offence, the provisions of s. 60(11)(a) of the Criminal Procedure Act, no 51 of 1977 ("the CPA") are applicable. That section provides as follows:

“(11) 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 permits his or her release;”

[3] In the matter of S v C 1998 (2) SACR 721, Conradie J held that the meaning of "exceptional circumstances" in s. 16(11) of the CPA is not meant to be punitive and should not be interpreted to mean that an accused who has demonstrated that he will stand trial and will not cause harm to the administration of justice or society should nonetheless be detained.

[4] At page 724 of his judgment he said the following:

“Die gees van die grondwet spreek duidelik uit hierdie bepalings. Dit volg dus dat waar art 39(2) van die Grondwet bepaal dat by die uitleg van enige wetgewing 'n hof die gees, strekking en oogmerke van die Handves van Regte moet bevorder, daardie hoogste Wet klaarblyklik dieselfde toegeeflike vertolking as die gemene reg voorstaan wanneer vryheidsregte in die gedrang kom.

Die problematiek in art 60(11) van die Wet word, wat die onderhawige saak betref, veroorsaak deur die uitdrukking 'buitengewone omstandighede'. Artikel 60(11) mag in die gees van die Grondwet en die gemene reg nie gelees word om méér van 'n verhoorafwagtende te vereis as om die gewone omstandighede wat hierbo genoem word te bewys nie.”

[5] In the matter of S v Dlamini [1999] ZACC 8; 1999 (4) SA 623 (CC) Kriegler J also stated that:

“I do not agree that, because of the wide variety of ordinary circumstances enumerated in sub- ss. (4)-(9) it is virtually impossible to imagine what would constitute exceptional circumstances and that the prospects of their existing are negligible. In requiring that the circumstances prove to be exceptional, the subsection does not say there must be circumstance above and beyond and generically different from those enumerated.”

[6] In evaluating the evidence, there can be in my view be little doubt that the magistrate has misdirected herself by only concentrating to find such circumstances over and above those enumerated in s. 60(4)-(9), despite the fact that the evidence clearly established that there was no likelihood that any of the consequences contemplated in s.60(4) would follow upon the release of the appellant on bail. What is of particular significance in this matter is that the evidence put up by the appellant by way of affidavit was supported by the oral testimony of the investigating officer in material respects.

[7] The matter had taken the rather unusual course where the investigating officer, due to his unavailability the following day, had to testify before the appellant. Nothing really turned on this as it appears that the investigating officer was called mainly to convince the magistrate that there were no cogent reasons why bail could not be granted.

[8] It clearly appears from the record that at that stage the state was not opposing bail and the prosecutor was at pains to extract from the investigating officer a statement to that effect. In fact the entire testimony of the Investigating Officer appeared to have been aimed at convincing the magistrate that:

(a) despite the fact that the appellant is accused of having raped his own daughter, a six year old girl, that there was no danger that he would interfere with her if he were to be released on bail because she had been removed from the household and was now in the care of the social workers where she would remain for the next two to three years;

(b) that he had established that the appellant had alternative accommodation namely Overtole Farm, where his parents are staying and that he therefore did not have to live with his common law wife who is the mother of the victim;

(c) that he did not appear to have any means to travel outside the country and he does not have any travelling documents.

[9] All in all the testimony of the Investigating Officer appeared to have been aimed at convincing the court that the interest of justice would permit the release of the accused on bail on certain conditions. The appellant thereafter submitted an affidavit which was obviously attested to on the assumption that the state was not opposing the granting of bail.

[10] In a bizarre twist of events however there was at some stage during the testimony of the Investigating Officer disagreement between him and the prosecutor regarding the details of the investigations and merits of the case and the prosecutor subsequently asked the court to ignore the testimony of the Investigating Officer and to refuse bail.

[11] The magistrate, having correctly adopted the approach that regardless of the fact that the state or for that matter the Investigating Officer did not oppose the bail, it was still incumbent on her to consider whether or not the appellant had been able to establish on a balance of probabilities that exceptional circumstances exist which in the interest of justice would permit his release, nevertheless failed to give due consideration to the relevant factors mentioned in s.60 of the CPA.

[12] She appeared to have considered the evidence of the appellant in isolation and in the light of the seriousness of the crime, came to the conclusion that there were no exceptional circumstances which would permit the appellant's release on bail. This is clearly a misdirection on her part. In determining whether or not exceptional circumstances existed she was required to have regard to the totality of the evidence before her and on that basis decide whether or not the interest of justice would permit the release of the accused on bail. As I have stated before, if she had indeed adopted that approach the conclusion that the release of the appellant on bail would not have resulted in any of the unwanted consequences mentioned in s. 60(4) would have been ineluctable.

[13] In my view however the true reason for her decision is evident from the following except from the judgment:

“This together with, even if the court were to find exceptional circumstances, this offence is very serious in light of the fact that it involves a minor child. Taking also into consideration that nature and the gravity of the charge the accused faces, the nature and gravity of the punishment which will likely be imposed should he be convicted, this also, it would not be in the interest of justice for the accused to be released.”

[14] She therefore clearly appears to have been of the view that because of the seriousness of the offence with which the accused had been charged she would not have ordered bail even if the accused were found to have established exceptional circumstances. This is clearly a serious misdirection on her part and in my view renders her decision wrong within the meaning of s. 65(4). Such an approach would seriously undermine the principle of the presumption of innocence and the individual's constitutional right to liberty. If an accused has been able to establish on a balance of probabilities that his or her release on bail will not result in any of the consequences contemplated in s. 60(4) of the CPA, the court must order his or her release on bail. In this matter the evidence adduced by the appellant, albeit by way of affidavit, together with that led by the state clearly established that the interest of justice did permit the appellant's release on bail.

[15] Mr Engelbrecht, who appeared for the state, submitted that despite the inadequacy of the reasons for her findings provided by the magistrate, the evidence had established that there is a real likelihood that the appellant will interfere with state witnesses if he were to be released on bail. He referred in particular to the fact that the victim’s mother is the appellant's common law wife and that he will have some influence over her, being the bread-winner and sole provider of the family. In his view it was not possible for the court to impose any conditions which could conceivably alleviate this likelihood. I am however in agreement with the submission made by Ms McCallum, who appeared for the appellant, that conditions which prohibit interference with state witnesses are usually imposed when bail is granted and any attempt by an accused person to interfere with the state witnesses or the investigation of the matter is a crime and may result in the cancellation of the bail. I am in the event of the view that there was no evidence of such likelihood and one is left to speculate about such a possibility.

[16] Mr Engelbrecht has also argued that the appellant was unable to present anything "rare" in his circumstances and what has been placed before the court were the usual circumstance which bail applicants invariably place before the courts. In my view to limit the meaning of exceptional circumstances to only those that can be regarded as rare or unusual would be going against the grain of the decisions to which I have referred to earlier. A court hearing a bail application in respect of which the provisions are of s.60(11)(a) are applicable is required to evaluate and analyze all the evidence before it, consider whether or not any of the consequences contemplated by s.60(4) are likely to follow upon his or her release on bail, finally weigh up the factors mentioned in s.60(9) and then make a value judgement as to whether or not the interest of justice would permit the accused's release on bail. It is obvious that on such an approach the "usual circumstances", when considered cumulatively and in the context of the totality of the evidence, may well constitute exceptional circumstances. The fact that an accused's assertions regarding his intentions to stand trial and to refrain from interfering with state witnesses are supported by evidence led on behalf of the state, may well constitute such proof of exceptional circumstances. This is especially so where the assertions of state witnesses in this regard are not simply based on perfunctory observations but are the result of thorough investigation. This clearly appeared to have been the case in this matter.

[17] I am also not in agreement with Mr Engelbrecht’s submission that there are grounds for the matter to be referred back to the magistrate for further evidence to be heard. I am satisfied that the evidence which had been led in the court a quo was sufficient to enable the magistrate to exercise her discretion in a judicial manner. For the reasons which I have stated above I am of the view that she has misdirected herself and that she was wrong in refusing to allow the appellant out on bail.

[18] In the result I am of the view that the appeal should succeed.

[19] I therefore made the following order:

In the result the appeal succeeds and the magistrate's decision is set aside. There is substituted the following order:

The appellant shall be released on bail on payment of an amount of R400.00 on the following conditions:

(a) That the appellant attend court on the dates ordered by the court and shall remain in attendance until the case has been finalized unless otherwise ordered by the court;

(b) The appellant shall not interfere with any of the state witnesses or the investigation of the charge against him;

(c) That the appellant shall not reside at no 275 Mavuya Township, Indwe and shall instead continue to live with his parents at Overtole Farm at Indwe;

4. That the appellant must inform the investigating officer in the event of him changing his residential address;

(e) That the accused report to the charge office of the South African Police in Indwe every Monday and Friday between the hours of 6h00 am and 6h00 pm every.

________________________

J. E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Appellant : Advocate McCallum

Legal Aid Centre

GRAHAMSTOWN

6140

Counsel for the State : Advocate Engelbrecht

Director of Public Prosecutions

GRAHAMSTOWN

6140

Date Heard : 15 December 2010

Date Delivered : 21 December 2010

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