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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) CASE NO. A122/2008

In the matter between :

LIZO FAYE APPELLANT

And

THE STATE RESPONDENT

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BAIL APPEAL JUDGMENT

_______________________________________________________

PETSE ADJP

[1] The appellant in this appeal appeals against the refusal by the court a quo to admit him to bail.

[2] The appellant was arrested in East London on 18 August 2008 on a charge of robbery which is what, in ordinary parlance, has become to be known as “cash-in-transit-heist”.

[3] The allegation against the appellant (and 7 others who do not feature in this appeal) is that on or upon 9 June 2008 and at or near Xhibeni Administrative Area in the district of Tabankulu he (and his co-accused) unlawfully and intentionally assaulted employees of Cash Paymaster Services and did then and with force take a sum of R1million and four firearms.

[4] The appellant, apparently some two (2) months after his arrest, applied in the court a quo to be admitted to bail. After the adduction of evidence the magistrate who heard his bail application turned it down.

[5] It is common cause between Mr Jordaan who argued the appeal on behalf of the appellant and Mr Van Drunick who appeared for the State that the appellant is charged with a schedule 6 offence (i.e robbery with aggravating circumstances) and that being so it is again common cause that the appellant bore the onus in the court a quo to satisfy that court that exceptional circumstances as contemplated in sec 60(11)(a) of the Criminal Procedure Act (“the Act”) were present.

[6] In refusing bail to the appellant the magistrate in the court a quo as can be gleaned from his ex-tempore judgment which forms part of the appeal record before me took into account the following factors, viz:

1. the so-called strength of the state’s case against the appellant;

2. the fact that the appellant might interfere with some of the witnesses for the prosecution whom the magistrate found were well known to the appellant;

3. what the magistrate said was “a serious likelihood” of the appellant not standing his trial; and

(iv) the grave misgivings that the magistrate had about the appellant’s alibi defence, viz: that he was in Volsloorus on the day of the commission of the alleged offence.

[7] Before I determine the fate of his appeal I consider it necessary to say a word or two about the proper approach that this Court must adopt in deciding this appeal.

[8] The starting point should be the examination of the provisions of sec 65 (4) of the Act which read thus :

“65(4) The court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or judge is satisfied that the decision was wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.” (Emphasis added)

[9] These provisions leave no room for any doubt that the appeal Court can justifiably interfere with the decision of the court of first instance only if it is satisfied that the decision of the Judicial Officer who was seized with the bail application and refused it was wrong. See for example in this regard : S v De Abreu 1980 (4) SA 94 (WLD) at 96 H-97A. Where the court a quo misdirected itself materially on the facts and/or legal principles bearing on the matter the court of appeal may itself consider the issue of bail afresh. See in this regard : S v Mpulampula 2007 (2) SACR 133 (ECD) at 136 e .

[10] It is as well to bear in mind that the grant or refusal of bail entails to a large degree the exercise of a judicial discretion on a consideration of all relevant factors. It therefore behoves the court hearing a bail application to bring its mind to bear on all issues that are germane to the application and leave out of the reckoning all those that are not.

[11] In S v Barber 1979 (4) SA 218 (D) 220E-H Hefer J as he then was, remarked as follows :

“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. 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 but exercised that discretion wrongly …. . Without saying that the magistrate’s view was actually the correct one, I have not been persuaded to decide that it is the wrong one”.

[12] In S v Porthen & Others 2004 (2) SARC 242 (C) at para [7] Binns-Ward AJ said that there could ‘be no quarrel with the correctness of the observations of Hefer J as a general proposition’. Binns-Ward AJ nevertheless considered it necessary to point out that a court hearing a bail application (i.e the court a quo exercises a wide as opposed to a narrow (or strict) discretion. At para [16] the learned judge remarked as follows with reference to S v Botha en ‘n ander 2002 (1) SACR 222 (SCA):

‘Insofar as the quoted dictum in S v Barber (supra) might be amenable to be construed to suggest that the appellate court’s power to intervene in terms of s 65(4) of the CPA is strictly confined, in the sense of permitting interference only if the magistrate has misdirected him- or herself in the exercise of his or her discretion in the narrow sense, I consider that it would be incorrect to put such a construction on the subsection; certainly in respect of appeals arising from bail applications made in terms of s 60(11)(a) of CPA. I am fortified in this conclusion by the manner in which the Supreme Court of Appeal dealt with the bail appeal in Botha’s case supra. See paras [21]-[27] of the judgment. It is clear that the Appeal Court undertook its own analysis of the evidence and came to its own conclusion that the appellants had not discharged the onus on them in terms of s 60(11)(a) of the CPA. (The fact that the appeal in Botha’s case was an appeal from a decision of a bail application by the High Court as the court of first instance does not affect the principle in issue.)’

[13] At para [17] in S v Porthen & Others, supra, the learned judge continued : “……[i]t remains necessary to :

be mindful that a bail appeal, including one affected by the provisions of s 60(11)(a), goes to the question of deprivation of personal liberty. In my view, that consideration is a further factor confirming that s 65(4) of the CPA should be construed in a manner which does not unduly restrict the ambit of an appeal court’s competence to decide that the lower court’s decision to refuse bail was “wrong”. See s 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996.” (Emphasis added)

I wholeheartedly align myself with the views expressed by the learned Judge in that regard.

[14] Reverting to the issue that lies at the heart of this appeal it seems to me on the view I take of the matter and on the acceptance by counsel on both sides that regard being had to the fact that it was common cause in the court a quo that the appellant is charged with a schedule 6 offence it was thus incumbent upon him to establish on a balance of probabilities that exceptional circumstances existed which, in a manner of speaking, imperatively cried out for his release on bail.

[15] It is my judgment that in circumstances where this Court finds that the appellant did not succeed in establishing exceptional circumstances as contemplated in sec 60 (11) (a) of the Act it is not entitled to interfere with the decision of the court a quo. The rationale for this view is to be found in the principle that interference with the judgment of the court a quo can be justified only on the basis that the court a quo was wrong in deciding the matter in the manner it did. See : S v De Abreu, supra, at 96 H.

[16] The question that now arises for determination is whether on the evidence presented in the court a quo it can be said that the appellant had in fact succeeded in discharging the onus that rested on him. It is my view that this question must of necessity be answered in the negative. It is my judgment that even on a most benevolent approach one could be disposed to adopt in casu and on close scrutiny of the evidence adduced by the appellant in the court a quo considered in the context of the evidence in its totality, such evidence, in its totality, (and this I emphasise) comes nowhere near to meeting the threshold that would compel the conclusion that exceptional circumstances were established as contemplated in sec 60(11)(a) of the Act. See for example in this regard : Herbay v S [1999] 2 All SA 216 (W) at 216 in which it was held that the phrase “exceptional circumstances” means something unusual or not typical. In S v Mokgoje 1999 (1) SACR 233 (NCD) it was therein held that the phrase “exceptional circumstances” means unique, unusual, rare and peculiar circumstances. I, with respect, entirely agree with the

views expressed in the aforementioned decisions. There is nothing, as the court a quo correctly found, in my view, that would make the appellant think twice and anxiously before he could take a decision to leave Mount Frere. He lives at his parental home, has no immovable property anywhere in the country. Other than his ipse dixit to that effect there is nothing to give one assurance that the interests of justice would not be jeopardised if he were to be released on bail. The only assets (of some unknown value) he claims that he owns are his motor vehicles. But their mobility and the facility with which they can be moved cannot provide any measure of re-assurance that the interests of justice would not be severely compromised and/or undermined if the appellant were to be admitted to bail.

[17] The evidence of Sergeant Jungqwana, the Investigating Officer, that the appellant is a flight risk was essentially not controverted when he was cross – examined. Indeed the cross-examination of the Investigating Officer was perfunctory to say the least. Such cross-examination rather focussed on the assault that the appellant alleged to have been subjected to at the hands of the Police and in particular Mr Dindi who, it appears from the record, was the Unit Commander of which the Investigating Officer was a member.

[18] In all the circumstances it is thus my judgment that this appeal falls to be dismissed.

[19] Before concluding this judgment I feel constrained to make some observations of my own in relation to the assault that the appellant alleged he was subjected to at the hands of the Police. This is an extremely serious matter and its seriousness is aggravated by the fact that this allegation of assault is levelled against the Police. But as matters stand it is well-nigh impossible for this Court to determine the veracity or otherwise of such allegation. Nevertheless I want to make one point abundantly clear which is that every judicial officer is duty bound not to turn a blind eye to the gravity of an allegation by a person in Police custody that he was assaulted. By virtue of their training and the nature of their duties members of the South African Police Service are expected and indeed it is required of them by the law at all times not only to respect the rights to physical integrity of the persons in their custody but also to protect them. I would therefore strongly urge the Station Commissioner under whose command the Police Station in which the appellant is detained to thoroughly investigate the appellant’s allegation that he was assaulted by the Police and if

that allegation is proved to have substance to ensure that the perpetrator(s) of the assault on the appellant is/are speedily brought to book.

[20] In the result the following order shall issue :

1. The appeal is dismissed.

2. The Registrar of this Court is directed forthwith to furnish a copy of this judgement to the Station Commissioner Tabankulu for him to ensure that the appellant’s allegation of assault whilst in Police custody is investigated as a matter of priority.

3. The Registrar of this Court is directed to forthwith furnish a copy of this judgment to the Director of Public Prosecutions, Mthatha, who must in collaboration with the Station Commissioner, Tabankulu ensure that the appellant’s allegation of assault whilst in Police custody is investigated as a matter of priority.

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X M PETSE

JUDGE OF THE HIGH COURT

HEARD ON : 19 DECEMBER 2008

DELIVERED : 24 DECEMBER 2008

COUNSEL FOR THE

APPELLANT : MR J.J. van ZYL JORDAAN

INSTRUCTED BY : SMITH TABATA

INCORPORATING BLAKEWAY

AND LEPPAN

COUNSEL FOR THE

RESPONDENT : MR M. VAN DRUNICK

INSTRUCTED BY : THE DIRECTOR OF PUBLIC

PROSECUTIONS, MTHATHA

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