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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

 

                                                                                                 

                                                                                             Case No.: A13/2021

 

In the matter between:

MOLEFI MODISE                                                                                                            Appellant

                                                                    

and

 

THE STATE                                                                                                                       Respondent

 

Coram:                         Opperman, J

Date of hearing:          16 February 2021. The appeal was adjudicated on the Heads of Argument on application by the parties and with authorization of the Court.[1]

Delivered:                    The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 22 February 2021. The date and time for hand-down is deemed to be 22 February 2021 at 15h00.

Summary:                    Appeal – bail application on new facts and delayed – dismissing of appeal because success will have no practical benefit for appellant - formal ruling on onus[2] afore the bail hearing

ORDER

Having considered the documents filed on record for the Appellant and the Respondent:

 

IT IS ORDERED THAT:

The appeal is dismissed.

 

 

JUDGMENT

 

 

[1]          This is an appeal on new facts that have become moot in the hands of the Appellant. It took him seven months to bring the appeal. On 5 February 2021 the matter served before me as an urgent application. Counsel for both parties requested to file Heads of Argument and agreed it to be filed on 9 February 2021 and 16 February 2021. They also applied for the matter to be disposed of in terms of section 19(a) of the Superior Courts Act 10 of 2013 in that it be determined on the said Heads of Argument.

 

[2]          The calamity is that events in the case and in life overtook the appeal. The grounds for the bail on new facts relied on by the Appellant were:

1.       The delay in the finalization of the investigation;

2.       the poor conditions, over-crowding and impact thereof on Covid-19 infections in prison; and

3.       the inability or refusal of the prison authorities to grant the Appellant access to a psychologist.

 

[3]          It is now common cause that the Appellant together with his co-accused; he is accused one of seven, will go on trial in May 2021 in the High Court on the charges mentioned hereunder and that the Covid-19 epidemic has altered in intensity and nature. An order of a court to avail the Appellant with psychiatric services can cure the third ground for appeal immediately. The charges are:

1.                      Attempted Robbery with Aggravating Circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977;

2.                      Attempted Murder;

3.                      Murder read with the provisions of section 51(1) and Part 1 of Schedule 3 of Act 105 of 1997;

4.                      Murder read with the provisions of section 51(1) and Part 1 of Schedule 3 of Act 105 of 1997;

5.                      Murder read with the provisions of section 51(1) and Part 1 of Schedule 3 of Act 105 of 1997;

6.                      Contravention of section 3 of the Firearms Control Act 60 of 2000 read with section 51(2) and Schedule 2 Part III of Act 105 of 1997: The possession of a semi-automatic firearm without a licence;

7.                      Contravention of section 90 of the Firearms Control Act 60 of 2000: The possession of unlicenced ammunition;

8.                      Contravention of section 1(f)(iv) of the Firearms Control Act 60 of 2000: The possession of a prohibited firearm;

9.                      Contravention of section 90 of the Firearms Control Act 60 of 2000: The possession of unlicenced ammunition.

 

[4]          The decision was taken by the Director of Public Prosecutions on 11 December 2020.

 

[5]          Imperative is the history that led to this Appeal. The Appellant was arrested on 12 June 2019 and charged with conspiracy to commit robbery, possession of a prohibited firearm (fully automatic firearm), illegal possession of another firearm and, of course, the ammunition that goes with it. He launched his first bail application on 18 July 2019 and it was dismissed on 30 August 2019. The bail application was adjudicated under Schedule 5 and his personal profile, factors in his favour and his account on the merits were duly placed on record when he testified.

 

[6]          On 26 June 2020 the Appellant endeavoured further to secure his release on bail based on new facts and which was turned down on 2 July 2020. This is now the case that lies on appeal; seven months later and with much of the proverbial water that had run into the sea since. The Appellant will have to take responsibility for the consequences in the delay in the filing of the Appeal. That said it remains inappropriate for a bail court to ignore extensive delays in finalising the prosecution of a trial. (S v Mququ  2019 (2) SACR 207 (ECG) at [16]). The Appeal Court cannot, however, ignore the later developments. In S v Ramokhosi 1999 (1) SACR 497 (SCA)[3] it was held that the mootness; the fact that the outcome will have no effect or practical relevance on the application might become a ground for the dismissal of the appeal.

 

[7]          It goes without saying that Schedule 6 will be applicable if the above charges are regarded. The Court on Appeal cannot ignore the fact that the indictment that was handed in much later in the proceedings characterizes the Appellant as nothing but an alleged contract murderer with the blood of many on his hands. It creates a conundrum on appeal that demands a renewed bail application a quo that will vent the factors regarded in the original bail application and the now formally and publicly released information.

 

[8]          If I am mistaken on the mootness of the appeal;  the magistrate was correct in his final judgment that the Appellant cannot be released whether it be in the interest of justice or special circumstances to prevail. Reading of the record shows that:

1.             The Appellant did not testify; he merely submitted an affidavit to the court wherein general remarks on the new factors were made. The allegations were not followed with prove and stands untested.

2.             The evidence adduced by the Appellant was negated by the thorough and remarkable evidence of the Investigating Officer in the case. He explained in detail how the investigation unfolded and how thousands of dockets had to be studied and investigated, ballistic test completed under the strain of Covid-19 lockdown and how he and his team worked tireless to expedite the investigations. The case was decided by the Office of the Prosecuting Authority and indictment followed without undue delay.

 

[9]          Section 65  “Appeal to superior court with regard to bail” reads as follows:

“(1) (a) An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.

(b)       The appeal may be heard by a single judge.

(c)        A local division of the Supreme Court shall have jurisdiction to hear an appeal under paragraph (a) if the area of jurisdiction of the lower court in question or any part thereof falls within the area of jurisdiction of such local division.

(2)        An appeal shall not lie in respect of new facts which arise or are discovered after the decision against which the appeal is brought, unless such new facts are first placed before the magistrate or regional magistrate against whose decision the appeal is brought and such magistrate or regional magistrate gives a decision against the accused on such new facts.

(3)       The accused shall serve a copy of the notice of appeal on the attorney-general and on the magistrate or, as the case may be, the regional magistrate, and the magistrate or regional magistrate shall forthwith furnish the reasons for his decision to the court or judge, as the case may be.

(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.”

 

[10]        Du Toit[4] with reference to case law surmised that an accused only has a right of appeal against the refusal of a renewed application of bail based on new facts if these new facts have actually been put before the magistrate in an acceptable and procedurally correct manner. I want to add “timeously”. A clear implication of this case is that it would always be necessary to compare the 'new evidence’ with the evidence presented in the earlier unsuccessful bail application. On appeal, new facts cannot be introduced from the bar. (S v Mdhluli 2020 (1) SACR 98 (LP) at [27]). But what if the proceedings and events developed to the stage it did here after the bail application and before the appeal? The Court of Appeal may not ignore it. The matter will have to be referred back to the court a quo.

 

[11]        The torment in the case does not end in the above. There must be mention of the handling of the applicable onus in the application a quo. There is not a bail application that can commence without the Schedule applicable; and therefor the onus prescribed, having been determined. Not even a bail application on new facts, as is the situation in casu. It did not happen in this case a quo and the onus jumped from that to be applied in Schedule 5 to that in Schedule 6 and back. The magistrate applied Schedule 6 in the end but the evidence did not permit it.  I repeat; all bail applications must start with the establishment of the Schedule applicable and the applicant must have a clear understanding of the issue.

 

[12]        In practise the court will have to probe the Schedule applicable from both parties, rule on it and explain the onus to the Applicant. Then and then only may the hearing commence. The court must rule on the Schedule because the parties might have it wrong. Bail applications are completely in the hands of the court.

 

[13]        Due to the conundrum in the case, I consulted with both Counsel for the State and the Appellant in chambers and it was agreed that the matter had to be adjudicated on a Schedule 5 – basis. It does however not cure the peculiar state of affairs on appeal.

 

[14]        The grounds of appeal relied on by the Appellant have subsided due to the delay in bringing the application forward on appeal. The alleged delay in the investigation, the Covid-19 situation and an order for psychiatric services that can be made, changed the reality. Added to this; the final decision of the magistrate cannot de deemed as a mistake notwithstanding that he applied the Schedule 6 onus erroneously. On both Schedule 5 and 6 the application stood to be dismissed. The oversight to declare the onus caused judicial irritation and concern and presiding officers must be more vigilant in this regard.  Nothing prevents the Appellant from bringing another application for bail if the circumstances justify such in terms of section 65(2) of the Criminal Procedure Act. The appeal stands to be dismissed.

 

[15]        ORDER

              The appeal is dismissed.

 

 

 

M OPPERMAN, J

 

APPEARANCES

Counsel for the Appellant                                        Advocate R J Nkhahle

                                                                                     Free State Society of Advocates

                                                                                     BLOEMFONTEIN

                                                                                    C/O Henecke Attorneys

                                                                                    154A Zastron Street

                                                                                    Suite 3 Oxford Building

                                                                                     BLOEMFONTEIN

 

Counsel for Respondent                                            Advocate LB Mpemvane

                                                                                     The Director of Public Prosecutions

                                                                                     BLOEMFONTEIN

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