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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, PORT ELIZABETH

CASE NO: CA&R 04/2015

Date heard: 10 June 2015

Date delivered: 11 June 2015

In the matter between

NDUMISO BOOI                                                                                                         Appellant

And

THE STATE                                                                                                            Respondent

JUDGMENT

GOOSEN, J.

[1] This is an appeal against the refusal by the magistrate at Port Elizabeth to admit the appellant to bail. The appellant is charged with seven offences and has been arraigned to stand trial in the High Court at Port Elizabeth on one count of robbery with aggravating circumstances; two counts of unlawful possession of firearms; two counts of unlawful possession of ammunition; conspiracy to commit murder and murder. It is alleged that the murder was premeditated.

[2] A formal bail application was brought in which the appellant testified. The prosecution opposed the granting of bail and tendered the evidence of the investigating officer, Colonel Grobler. The application was commenced on 27 November 2014 and was finalised on 23 February 2015 when the magistrate, after considering the evidence, refused bail. The appellant now appeals against that decision.

[3] It is common cause that by virtue of the fact that the murder charge involves premeditation, the provisions of Schedule 6 to the Criminal Procedure Act apply. Accordingly the appellant bore the onus at the bail hearing to establish exceptional circumstances which would render it in the interests of justice that he be admitted to bail.

[4] Section 65 (4) of the CPA provides that:

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.

[5] In S v Barber 1979 (4) SA 218 (D) Hefer J said (at 220 E – H.):

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 review for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of its discretion. I think it should be in 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.

[6] 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 either 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)).

[7] It was argued that the magistrate’s reasons for refusing bail amounted to no more than a summary of the evidence rather than an evaluation and assessment thereof. It was submitted also that the decision was wrong, in as much as the magistrate had not found that the appellant would probably be acquitted at trial. Mr. Dauberman, for the appellant, argued that the state case against the appellant was weak. That being so, the magistrate ought to have found that there are exceptional circumstances present entitling the appellant to bail. He conceded that in the event that it was found that the appellant had not established that the state case would probably fail, the appeal should be dismissed.

[8] The basis upon which the appellant had applied for bail was that, at the time of the alleged commission of the offences (of conspiracy; murder; and the related counts of unlawful possession of firearms and ammunition), he was in custody. He indicated that he has no knowledge of the allegations made against him. In cross-examination he stated that the exceptional circumstance upon which he relied was that his mother was ill; that she was suffering from HIV and that he was required to assist her to obtain treatment. Important to note here is the fact that the appellant did not pertinently set out to challenge the strength of the state case against him, save to the extent already mentioned.

[9] The finding by the magistrate that the illness of the appellant’s mother does not amount to an exceptional circumstance was not challenged by the appellant. His case on appeal was confined to the question whether the state’s case was weak and accordingly whether that fact establishes exceptional circumstances.

[10] The charges of conspiracy to murder and murder arise from the alleged murder of a witness who had identified the appellant in relation to a robbery charge for which the appellant has also been charged. The state’s case is that the appellant, whilst in custody, was in telephonic contact with his girlfriend, Mange, one of his co-accused in the case, in order to orchestrate the killing of the witness. The evidence of the investigating officer was that Mange had telephoned a doctor’s surgery where the deceased was employed to establish that she was present and that shortly thereafter, when she left the surgery, the deceased was shot and killed.

[11] The persons alleged to have shot and killed the witness, are the other two accused, with whom the appellant has been arraigned.

[12] It was argued on behalf of the appellant that the state’s case against him is based purely on circumstantial evidence and that such evidence relates to his telephonic contact with his girlfriend; certain conference calls that were facilitated by her with the alleged killers and the fact that the appellant clearly stood to gain from the murder of the deceased.

[13] Mr. Dauberman accepted for the purposes of argument that the prosecution would be able to establish that Mange had telephoned the doctor’s surgery shortly before the murder took place; that certain cell phone records would establish is that the two other accused were in telephonic contact with Mange and another telephone number; that they were in the vicinity of the surgery at the time that the murder was occurred. It was also accepted that the prosecution would be able to establish that Mange was in contact with another cell phone number, which was located in the vicinity of St Albans, and that a conference call was arranged between that number and the cell phone numbers of the two alleged killers.

[14] It was however argued that certain other evidence, namely that of the investigating officer who used Mange’s telephone in order to speak to the person who holds the other cell phone number and his assertion that it was the appellant was at best tenuous and is susceptible to challenge. It was argued that no sim card was recovered from the possession of the appellant and that the appellant was at no stage found to be in possession of a cell phone and that there is, on that basis, no evidence to link him to the cell phone in the vicinity of St Albans. It was argued therefore that it cannot be said that the only inference to be drawn from all of those established facts, if established, is that the accused had made himself guilty of the offences for which he has been charged and that it was therefore likely that the appellant would be acquitted of the charges.

[15] It was also argued that there is, in any event, no evidence as to the content of the telephonic exchanges and that the only evidence relating to the content of those telephone calls is to be found in the content of an extra-curial admission made by Mange, a co-accused, which is not admissible against the appellant..

[16] In arguing to the contrary Mr. Thysse, for the state, submitted that the appellant had failed to establish that the prosecution would fail at trial. It was argued that this court was not required to make a provisional finding regarding the guilt of the accused and that it was not for this court to determine in advance questions of admissibility of evidence it to be tendered by the prosecution. It was argued that the prosecution would not only rely on the circumstantial evidence of the cell phone connections between the accused but also upon the exception to the hearsay rule in order to obtain the admission of evidence in the form of the statement made by the deceased person. On that basis, it was argued that the appellant had not established, at his bail hearing, that there was a likelihood that the prosecution case would fail and that the magistrate was accordingly correct in finding that the accused had failed to discharge the onus which rests upon him.

[17] Consideration of the strength or weakness of the prosecution case against an applicant for bail is a relevant consideration in determining whether it is in the interests of justice to admit an applicant to bail (see S v Kock 2003 (2) SACR 5 (SCA). It is however only a factor to be weighed in determining where the interests of justice lie.

[18] In S v Mathebula 2010 (1) SACR 55 (SCA) at para 12 the court said:

But a State case supposed in advance to be frail may nevertheless sustain proof beyond a reasonable doubt when put to the test. In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove, on a balance of probability that he will be acquitted of the charge: S v Botha en ‘n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577) at 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) ([2002] 4 All SA 10) at 556c. That is no mean task, the more especially as an innocent person cannot be expected t have insight into matters in which he was involved only on the periphery or perhaps not at all. But the state is not obliged to show its hand in advance, at least not before the time when the contents of the docket must be made available to the defence; as to which see Shabalala and Others v Attorney-General,Transvaal, and Another  [1995] ZACC 12; 1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593). Nor is an attack on the prosecution case at all necessary to discharge the onus; the applicant who chooses to follow that route must make his own way and not expect t have it cleared before him. Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing there is no call on the State to rebut his evidence to that effect: S v Viljoen  at 561f-g.

[19] As in that case I consider that the appellant fell short of the target. The fact that the prosecution case might rest upon circumstantial evidence does not for that reason render it weak. The extent to which inferences may be drawn from proven facts will depend on the nature of the facts proved at trial. It appears to be common cause that the state is in possession of evidence relating to telephone calls between different cell phone numbers and evidence relating to the locality of those cellphones when the calls were made. There is also the evidence, it appears, that the telephone number of the cell phone located in the St Albans area was retrieved from the contacts directory of Mange’s telephone as being the telephone number of the appellant.

[20] For present purposes it must be accepted that the prosecution will in due course be able to prove that fact. That being so, there is a rather more substantial link between the respective telephone numbers and the persons associated with those numbers than was presented in argument. The thrust of the appellant’s case, at the bail hearing and in argument before this court, was that the balance of probability was to be found in the likely outcome of an argument as to the inferences that may properly be drawn from proven those facts. That, in my view, is not a basis upon which to determine whether, in these bail proceedings, the applicant has discharged the onus which rests upon him. An applicant for bail who seeks to rely on the likelihood that he will be acquitted in due course is required to adduce evidence which, upon a reasonable assessment of that evidence, establishes that the balance of probabilities favours a finding that the accused is likely to be acquitted at trial.

[21] The magistrate was alive to the nature of the evidence which the state has at its disposal and was also alive to the challenge to the admissibility of certain aspects of that evidence. The magistrate was also alive to the evidence presented by the investigating officer which pointed to the fact that the appellant had been charged with a number of cases but that in many of those cases the charges had been withdrawn because witnesses had disappeared or been killed.

[22] It has not, in my view, been demonstrated that the magistrate’s conclusion in denying bail to the appellant was wrong. In the circumstances the appeal must fail.

[23] I therefore make the following order:

The appeal is dismissed.

______________________

G.  GOOSEN

JUDGE OF THE HIGH COURT

Appearances:          For the Appellant

                                    Mr. Dauberman

                                    For the Respondent

                                    Mr. Thysse

 

 

 

 

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