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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO : 123/2014

 DATE HEARD : 16 MAY 2014

      DATE DELIVERED : 19 MAY 2014

          REPORTABLE / NOT REPORTABLE

In the matter between :

NAZARUS DONATUS                                                                                                 Appellant

and

THE STATE                                                                                                              Respondent

JUDGMENT

RUGUNANAN, AJ :

[1] The appellant, a Nigerian national, appeals to this court in terms of section 65 of the Criminal Procedure Act 51 of 1977 (‘the Act’) against the refusal of a magistrate to admit him to bail.

[2] The appellant was arrested in East London on 7 February 2014 for an offence involving a quantity of drugs and a sum of cash found hidden in the fuse compartment beneath the steering column of the vehicle being driven by him. The offence falls within the scope of the provisions of schedule 5 of the Act. The appellant is in custody since the date of his arrest.

[3] It is common cause between Mr Koekemoer, who argued the appeal on behalf of the appellant and Mr Mtsila, who appeared for the state, that the appellant was arrested while on bail for a similar offence, that the evidence against the appellant for the second offence established a prima facie case and that the appellant bore the onus in the court a quo to satisfy the magistrate that the interests of justice permit his release.

[4] In refusing bail the magistrate’s ex tempore judgment reflects that he took several factors into consideration but primarily, the strength of the state’s case and the appellant’s previous arrest for a drug related offence for which he was granted bail.

[5] Before dealing with the merits of the matter it is considered convenient to elucidate some of the general principles regarding bail.

[6] The provisions of section 65(4) of the Act preclude me from setting aside the magistrate’s decision unless I am satisfied that it is wrong in which event the issue of bail may be considered afresh (see S v Faye 2009 (2) SACR 210 (TkHC) at 212e-f). The powers of an appellate court are limited where a matter comes before it on appeal and not as a substantive application for bail. For that reason, when considering whether the decision by a court of first instance is wrong, an appellate court will give due deference and attach appropriate weight to the fact that the court of first instance is vested with a discretion and will eschew any inclination to substitute its own decision unless it is persuaded that the court of first instance was wrong (see S v Porthen & Others 2004 (2) SACR 242 (CPD) at paragraphs [4] and [11]).

[7] The provisions of section 60(11)(b) of the Act stipulate that when an accused person is charged with an offence referred to in schedule 5 he or she shall be detained in custody unless he or she adduces evidence which “satisfies” the court that the “interests of justice” permit his or her release. The word “satisfies” presumes that the accused person will discharge the onus on a balance of probabilities (see S v Siwela 1999 (2) SACR 685 (W) at 704i).

[8] In bail proceedings the “interests of justice” is tritely regarded as a highly relevant consideration. In S v Smith & Another 1969 (4) SA 175 (N) at 177 E-F, the court had the following to say:

“The general principles regarding the grant of bail are that, in exercising the statutory decision conferred upon it, the Court must be governed by the foundational principle which is to uphold the interests of justice; the Court will always grant bail where possible, and will lean in favour of, and not against the liberty of the subject, provided that it is clear that the interests of justice will not be prejudiced thereby”.

[9] In S v Acheson 1991 (2) SA 805 (Nm) at 822 A-B, it was similarly stated that :

“An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice.”

[10] Section 35(1)(f) of the Constitution expressly stipulates that:

“Everyone who has been arrested for allegedly committing an offence has the right - to be released from detention if the interests of justice, permit subject to reasonable conditions.”

[11] The “interests of justice” is undoubtedly accentuated as the golden thread which runs through these dicta and the relevant provision in the Constitution. Its content means nothing other than the normal considerations taken into account in bail applications (see S v De Kock 1995 (1) SACR 299 (T) at 308 e-f).

[12] For that reason, any fact or circumstance that may have some bearing on the result is admissible in evidence and ought to be considered by the court in the exercise of its discretion to grant or refuse bail, and any issue which is not germane may be left out of reckoning (see S v Fourie 1973 (1) SA 100 (D&CLD) at 102H and S v Faye supra at 212g.) In this regard evidence of an accused’s past record or of his conduct while out on bail in another case is not irrelevant (see S v Fourie supra at 102H)(own underlining and emphasis).

[13] I am in respectful agreement with the aforementioned dicta and the principles enunciated.

[14] The argument by Mr Koekemoer is that the magistrate erred in finding that there is a likelihood of the appellant committing a similar offence if released on bail; firstly, because the allegations against him are disputed and not yet proven and so the propensity to commit crimes of a similar nature including its probability  of occurrence may only be deduced from the appellant’s previous convictions which (it is common cause) he did not have; and secondly, the magistrate’s acceptance that the appellant will stand trial and comply with conditions did not warrant imposing a form of preventative detention which detention, he argued, should only be resorted to in exceptional circumstances (see S v Du Plessis en ‘n Ander 1993 (2) SASV 379 (T) at 385a-b; S v Diale 2013 (2) SACR 85 (GNP) at para [14] and S v Fourie supra at 103E).

[15] In submitting that the magistrate’s finding cannot be faulted, Mr Mtsila contended that it is the appellant’s repetitive conduct that assumes significance for assessing the likelihood or propensity to commit further offences. He emphasised that the record of proceedings before the magistrate bears evidence that offences involving drugs are decidedly prevalent in East London and that society is entitled to be protected against the risk of repetition of such offences. He contented further that drug trafficking is detrimental to society, that it is not in the interests of society that the appellant who has displayed a disregard for the law be granted bail and let free into society notwithstanding assurances to abide by conditions and to stand trial. Regard being had to the strength of the state’s case, he urged that preventative detention is not outweighed by those assurances in the circumstances of this matter.

[16] It is correct that a court will not lightly deprive an accused person of his liberty where it thinks upon the facts before it that he will appear to abide by conditions and stand his trial in due course. But the mere observance of conditions and attendance at court does not necessarily negate a propensity to commit further offences, which in this instance involves drugs.

[17] The purpose of granting bail to an accused is to minimise interference with his lawful activities. But where there is clear evidence from which the inference inescapably is that the accused has abused the grant of bail by indulging in the same criminal conduct, then the interests of justice require that society be protected against the risk of repetition of such conduct. In this regard see S v Petersen & Another 1992 (2) SACR 52 (C) at 55e-g. It is a widely known fact that offences involving drugs are detrimental to society. It is certainly not in the interests of society that the appellant who has displayed a disregard for the law be granted bail and let free on society.

[18] On close scrutiny of the totality of the evidence contained in the record considered in the context of the very able arguments presented by both counsel, it is my judgment that, even on the most liberal approach that one could be disposed to adopt in the matter, the appellant’s evidence comes nowhere close to meeting the requirement in section 60(1)(a) of the Act that the interests of justice permit his release on bail.

[19] In arriving at my decision I can well appreciate the sentiment conveyed by Lombard J in his words “.. to arrive at a conclusion which would ensure that justice is done has added to the proverbial grey hair and contributed to a sleepless night or two”. See S v Kyriacou 2000 (2) SACR 704 (OPD) at 713i .

[20] In the circumstances I am of the opinion that the magistrate’s decision is correct. Accordingly, the appeal is dismissed.

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S RUGUNANAN

Acting Judge of the High Court

Appearances :

Adv J R Koekemoer, Instructed NN Dullabh & Co, Grahamstown

Adv Mtsila, Instructed Director of Public Prosecutions, Grahamstown

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