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Jacobus and Another v S (CA&R156/2016) [2016] ZAECGHC 65 (22 August 2016)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 156/2016

Date heard : 18/08/2016

Date delivered: 22/08/2016

In the matter between:

ELDRID JACOBUS                                                                                            First Appellant

ABRAHAM (A.K.A ANDRĖ)

HOFFMAN                                                                                                    Second Appellant

and

THE STATE

JUDGMENT

RUGUNANAN AJ:

[1] This is an appeal by the appellants against the decision of a magistrate in Willowmore refusing their application for release on bail pending their trial on a charge of “theft of stock or produce”.

[2] The appeal to this Court is in terms of section 65 of the Criminal Procedure Act 51 of 1977 (“the Act”). It is a settled principle that a court hearing a bail appeal is not entitled to set aside the decision against which the appeal is brought unless it is satisfied that the decision was wrong. The following pronouncement in S v Barber 1979 (4) SA 218 (D) at 220 E-G is apposite:

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. This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate‟s exercise of his discretion. I think it should be stressed that, no matter what this Court‟s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.”

See also S v Branco 2002 (1) SACR 531 (WLD) at 533 i

[3] With reference to Barber supra, Goosen J in S v Panayiotou, Case CA&R 06/2015, unreported Eastern Cape Division, Grahamstown, stated as follows at paragraph 27:

[27] This approach has been approved in a number of decisions. In order to interfere on appeal it is accordingly necessary to find that the magistrate misdirected himself or herself in some material way in relation to fact or law (see S v Ali 2011 (1) SACR 34 (E) at para 14; cf. also S V M 2007 (2) SACR 133 (E)). If such misdirection is established, the appeal court is at large to consider whether bail ought, in the particular circumstances, to have been granted or refused. In the absence of a finding that the magistrate misdirected him or herself the appeal must fail (cf. S v Porthen and Others 2004 (2) SACR 242 (C) at para [11]).”

[4] Moving on to the facts of the matter, the appellants did not testify during the bail proceedings before the magistrate. The first appellant’s personal circumstances are known to the investigating officer Warrant Officer Wilson Afrika, and are, as such, common cause; he is unemployed, lives in Rietbron and has no previous convictions. The second appellant submitted an affidavit as his evidence. His personal circumstances, in a number of material respects, such as being a resident of Rietbron, that he is unemployed and has previous convictions are also known to W/O Afrika.

[5] In opposing bail the State led evidence from W/O Afrika, a member of the Rietbron SAPS. W/O Afrika testified that the appellants are directly linked to the commission of the offence in a written statement by one Ruduaan Rossouw (“Rossouw”), and by a fellow member of the SAPS who pursued a Mazda bakkie in the vicinity of the complainant’s farm the night of the commission of the offence when 4 dorper sheep, each valued at R1 600.00, were stolen. The bakkie is owned by the first appellant’s father. On the night of the chase, the bakkie was driven by the first appellant until it eventually came to a stop once it left the road and landed in a dry river bed. According to W/O Afrika, the police officer who gave chase found 4 sheep on the bakkie; three alive but one already slaughtered apparently while in transit in the load space of the bakkie. The occupants of the bakkie fled the scene, but were subsequently identified by Rossouw. W/O Afrika stated that he opposed bail on the basis that the appellants would abscond and not stand trial and / or that they would interfere with the State witnesses considering that Rietbron is a small town and it is not uncommon that people in small towns are known to each other. In the case of the first appellant, W/O Afrika reasoned that the first appellant is unemployed and knows the identity of the State witnesses. In the case of the second appellant, his previous convictions and failure to observe conditions of bail in a previous matter led W/O Afrika to believe that he was a flight risk.

[6] Cross-examination of W/O Afrika was conducted on the footing that although a prima facie case existed against the appellants, they intended to plead not guilty to the charge against them, that the first appellant was misled by Rossouw to procure the bakkie to assist Rossouw in picking up the latter’s brother from the complainant’s farm, and that the second appellant was merely given a lift while en route to the farm. W/O Afrika fairly conceded that the appellants’ versions would obviously be canvassed during the criminal trial. He also readily admitted that, in the absence of any well grounded facts, his reasons for believing that the appellants would abscond and / or interfere with State witnesses were speculative. To this end he conceded that he would have no difficulty if the magistrate granted bail with conditions. The relevant extract from the transcript reads as follows:

Nou as die hof nou vandag besluit om wel aan hierdie twee beskuldigdes borg toe te staan en wat gewoonlik mos maar ‘n voorwaarde is van borg jy mag nie met getuienis in aanraking kom nie. Jy mag nie die distrik van Rietbron of Willowmore verlaat nie dan het u mos nou geen beswaar meer vir borg nie. Is dit so? … Nee

[7] Mr Els, who appeared for the State, conceded, correctly, that such evidence could not lightly be disregarded. I am of the view that this evidence tips the balance in favour of the appellants and that the magistrate erred in denying them bail.

[8] The provisions of section 60(4) of the Act are relevant. Section 60(4) provides that:

(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

(a) 

(b)  where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial;

(c)  where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence;

(d)… (e)…”

[9] As appears from sub-paragraphs (b) and (c) it must be established that there was a likelihood that the appellants, if released, would evade their trial or attempt to influence or intimidate witnesses. The word “likelihood” connotes something more than a mere temptation. It is defined in the Oxford English Dictionary as meaning a “probability”. In S v Tshabalala 1998 (2) SACR (C) the following was stated at 271e-f:

“ ‘Likelihood’ in this context simply means probability. In cases not governed by s60(11), if bail is to be denied, the State would have to establish or the court would have to find a probability that the applicant for bail, if released, would attempt to influence or intimidate witnesses..”

[10] Respectfully, the magistrate clearly did not appreciate that in assessing the likelihood required by the aforementioned sub-sections, the requisite standard of proof could not be established on the strength of a mere opinion by W/O Afrika unless it was well grounded on proven facts. Accordingly, the magistrate misdirected himself which renders his decision open to interference. Hence the resultant order in the concluding paragraph of this judgment.

[11] Before concluding, it is deemed necessary to comment on the manner in which the parties conducted the bail proceedings before the magistrate. The record reflects that the parties approached the bail application of the second appellant on the basis that Schedule 5 was applicable to the charge against him due to his previous convictions for housebreaking and theft. This meant that the second appellant would be affected by the provisions of section 60(11)(b) of the Act, whereas the bail application for first appellant would be governed by section 60(1). For the second appellant, the consequence of the approach adopted by the parties is that it attracted an onus for him to adduce evidence to the satisfaction of the court that the interests of justice permit his release. It goes without saying that in all instances except those provided for in section 60(11) of the Act the onus remains on the State. It is disquieting that the parties’ approach to the matter, particularly for the second appellant, appears to have been uncritically accepted by the magistrate. In Schedule 5 bail applications, the burden of proving that the interests of justice would be served by the continued detention of an accused remains with the State. The State may discharge this burden by giving a full and proper description of the alleged offence in the charge sheet, or by resorting to a certificate from the attorney-general in terms of section 60(11A) of the Act. In the present case the State did not procure the relevant certificate nor can it be said that the charge sheet contained a full and proper description of the alleged offence. In point, the charge sheet appears to be pro- forma which at best names the offence for which the second appellant is charged with abbreviated reference to the provisions of the Stock Theft Act 57 of 1959. The approach adopted by the parties is impermissible. The second appellant only attracts an onus once the State has established that the charge falls within Schedule 5, either through a proper description of the charge or by procuring the aforementioned certificate. It is my view that the arrangement between the parties held serious prejudice for the second appellant because it made it more difficult for him to obtain bail by placing an onus on him. The magistrate’s uncritical acceptance of this arrangement between the parties amounts to a misdirection.

[12] In all the circumstances, the following order will issue:

1.         The appeal by both appellants succeeds and the magistrate’s order refusing bail is set aside.

2.         The first and second appellants are released on bail of R500.00 (five hundred Rand) each on the following conditions:

(a)         That they appear personally in the district Magistrate’s Court at Willowmore (Case No. 98/16) on such times, dates and places to which the criminal proceedings may from time to  time be adjourned until the conclusion of the said proceedings;

(b)         That they report in person to the person in charge of the community service centre (charge office) at the Rietbron Police Station every day between the hours 06h00 and 18h00;

(c)         That the first appellant, Eldrid Jacobs, remains at his place of residence “Nuwe Uitbreiding 536”, Rietbron, every evening between 18h00 and 06h00;

(d)         That the second appellant, Andre Hoffman, remains at his place of residence “Nuwe Uitbreiding 696”, Rietbron, every evening between 18h00 and 06h00;

(e)         That the appellants are precluded from communicating or interfering in any manner with the State Witnesses, namely, James Shandu, Christo Vermeulen and Ruduaan Rossouw;

(f)         That the appellants should not leave the district Willowmore without the permission of the investigating officer Warrant Officer Wilson Afrika. Should any of the appellants wish to leave the district he should notify the investigating officer 24 hours prior to his departure;

(g)         Should any of the appellants fail to adhere to any of the conditions mentioned in this order, a warrant of arrest will be authorised for immediate issue and execution and will result in forfeiture of bail money.

__________________________

S RUGUNANAN

Acting Judge of the High Court

 

Date Heard : 18 August 2016

Date Delivered : 22 August 2016

 

Appearances:

For Appellants : Mr H Charles, Grahamstown Justice Centre For Respondent : Adv D Els, DPP, Grahamstown