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IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(BREYTEN CIRCUIT COURT)

                                                                          CASE NO: BA 05/2021

In the matter between:               

BUTAHA ABRAM MOTLOUNG                              APPELLANT  

And

THE STATE                                                            RESPONDENT                             

JUDGMENT

BRAUCKMANN AJ

INTRODUCTION

[1]       This is an appeal against the refusal of bail in the application for bail by the appellant held in the Magistrate’s Court the district of Siyabushwa. The appellant was arrested on 15 May 2020 and charged with two counts of rape. The bail application fell under the ambit of Schedule 6 of the Criminal Procedure Act, Act 51 of 1977 (“the CPA”). The appellant had to adduce evidence which satisfies the court that exceptional circumstances exist which permits his release on bail, in the interest of justice.

[2]       The appellant lodged a formal bail application during which he testified under oath.  The respondent opposed the application, and   the evidence of the investigating officer (“the IO”) was tendered to the court. The court also called a witness to testify.

[3]       The function and power of the Court hearing a bail appeal is similar to an appeal court hearing an appeal against conviction and sentence[1]. In terms of Section 65(4) of the CPA the court hearing the appeal:

“shall not set aside the decision against which the appeal is brought, unless such court … is satisfied that the decision was wrong, in which event the court shall give the decision which in its … opinion the lower court should have given.”

[4]         A court of Appeal has limited powers to intervene with the lower court’s discretion regarding the granting of bail.  The interference with the application of discretion of the court a quo can only take place if the appellate court is satisfied that the court a quo was wrong. Even if the appellate Court  have a different view, it should not substitute its own view for that of the court a quo because that would be an unfair interference with the court a quo’s  exercise of his discretion[2].

[5]       The question to consider is therefore whether the court a quo misdirected itself materially on the facts or legal principles of a matter.  If the appellate court finds accordingly, the court of appeal will consider the issue of bail afresh[3].

[6]       The appellant’s grounds of appeal is summarised in his heads of argument to wit:

1. The court a quo erred in his conclusion that there were no exceptional circumstances which in the interest of justice permit the appellant to be released  on bail, by disregarding the fact that the  appellant takes care of his grandmother by taking her to clinic to collect blood pressure rnedication.

2. By disregarding the fact that the appellant have a hearse which he rents out and drive, earning R4000, 00 per month, and that he suffers from asthma and uses an asthma pump.

3. That he maintains his children.

4. That he does not know the complainants in both rape cases and intends to plead not guilty to both counts.

5. That he was arrested in the rape cases while attending court in Vaalbank .

6. That he was informed of the rape charges by police official a week before his arrest and proceeded to the police and he was arrested. To the contrary, he stated that he surrendered himself, but upon being questioned by the court a quo, admitted that he did not do so.

7. The court a quo erred in emphasizing that there is a prima facie case of rape against the accused on both counts based on DNA evidence.

8. The court erred and proceeded from a wrong premise, which caused it to concentrate only on the seriousness of the offence without considering whether, if released on bail, the appellant would interfere or intimidate witnesses, or whether the personal circumstances were such that he would not stand trial. The court a quo accordingly, so the argument goes, misdirected itself by refusing the appellant bail after confirming that there was no direct evidence that the appellant will interfere with the state witness if released on bail.

9. The court a quo erred in refusing the appellant bail regardless of the fact that the Investigation officer confirmed that the appellant had complied with bail conditions in another case where he is charged with robbery with aggravating circumstances.

[7]       In S v Schietekat [4]the court held as follows:

            “[In bail applications] The court may take into account whatever information is placed before it in order to form what is essentially an opinion or value judgment of what an uncertain future holds. It must prognosticate. To do this it must necessarily have regards to whatever is put up by the State in order to decide whether the accused has discharged the onus of showing that ‘exceptional circumstances exist which in the interests of justice permit his release”.

[8]      The appellant testified that He is 42 years old and resides at his parental home, where he looks after his grandmother, and takes her to the clinic for her medication; That he is self-employed, leasing his one motor vehicle to mortuaries as a hearse with which he earns approximately R 4 000. 00 per week; He has four children, one of which, stays with him; He stated that he is suffering from asthma; The appellant has a pending case at Vaalbank for robbery with aggravating  circumstances; He testified that he has three previous convictions, two for possession of cannabis and one for driving without a valid driver’s license; The appellant denies any knowledge about the incidents that he is arraigned for; He stated that he was aware that he was being sought for the rape cases  as he  was informed by an investigating officer that they were looking for him; The appellant stated that he will not be a threat to the community; He stated that he will not interfere with the investigations; He further indicated that he will not look for the complainants; He stated that he will not evade his trial.

[9]       The IO testified that how the two incidents happened where the three respective complainants, were accosted and raped, whilst being threatened with fire-arms; He stated that the appellant is linked to these two incidents due to a positive DNA result; Further that one of the complainants were raped more than once by the appellant and his accomplice; He stated that the matter at Vaalbank, is a robbery with aggravating circumstances, where the traffic department was robbed of inter alia fourteen  fire-arms; That during the arrest of the appellant in that matter, buccal samples were taken and sent to the Forensic Science Laboratory (“FSL”); A report was received from FSL, that the appellant is linked to the two incidents (rape) at Siyabushwa; That the appellant have three previous convictions for possession of cannabis, and not just two, as well as one for driving a motor vehicle without a valid driver’s license; The appellant failed to appear in court on a postponement date in Vaalbank without any reasons being provided and a warrant for his arrest was issued, but held over; He further denied that the appellant was informed  that he is a suspect in these two rape matters as the appellant alleged; He stated that the witnesses are not safe, especially the one complainant, who alleged that her attacker knows where she stays;

[10]     The court then proceeded and called the investigating officer in the Vaalbank matter (robbery), to clarify certain aspects in the evidence of the appellant.  He stated that the appellant did not appear at Vaalbank court. When he reached the appellant telephonically, he was informed that the appellant could not go to court, as he was held up in Pretoria. He denied that the appellant informed him, that he was stopped from attending court by members of the South African National Defence Force (“SANDF”).  He denied that he ever told the appellant that he was a suspect in the two rape incidents.

[11]     Factors that the court a quo considered pertaining to the bail application appears from the transcribed record and are the following:

           1. That the court consider all the personal circumstances of the appellant;

2. That the appellant considered the evidence of the investigating officer as well as the court’s witness;

3. The court a quo considered the fact that appellant is accused of  schedule 6 offences and in the bail application the court had to consider whether the appellant proved the existence of exceptional circumstances;

4. The court considered the prima facie strength of the case against the appellant without deciding on the guilt;

5.  The court found that the state has a strong prima facie case against appellant, and that it must consider the seriousness of the charges against the appellant;

7. The court also considered the fact that all of the charges against the appellant involved violence, specifically involving the use of fire-arms;

8. The court held that it would appear as if the appellant has a disposition to commit serious violent offences;

9. The court held that the appellant did not tell the truth to the court in that he was not informed of the rape matters prior to his arrest as alleged and that the appellant tried to mislead the court, by first stating that he handed himself over to the investigators, which later appeared to be an untruth. The court also held that the appellant was dishonest regarding the reasons for his failure to appear in court in the Vaalbank matter;

10. That led the court to conclude that there is a substantial risk that the appellant might evade his trial, amongst other, due to the sentences he is facing with regard to the two counts of rape.

[12]    The court a quo then ruled, that the appellant have failed to prove the existence of exceptional circumstances, and that his personal circumstances are outweighed by the seriousness of the offences, the possible sentences and the strength of the respondent’s case, and subsequently refused to release the appellant on bail.  The court a quo considered whether, having regard to the totality of the evidence adduced by the appellant satisfied the requirements in terms of section 60(11)(a) of the CPA and found that it did not and accordingly it was not in the interest of justice to release the appellant on bail. The prescript in section 60(11) (a) of the CPA is peremptory. It states clearly and emphatically that a court ‘shall’ order that an accused be detained in custody, when charged with an offense listed in schedule 6, unless the accused can prove that exceptional circumstances exist and that it is in the interest of   justice that he be released on bail.

[13]    The appellant’s heads of argument regurgitates the stipulations of section 60 (4) of the CPA, and contains various quotations of authoritative judgments by the High Courts and Supreme Court of Appeal dealing with bail applications. Apart from repeating the grounds of appeal contained in his notice of appeal, not arguments of substance are apparent from the heads. The following appears from the heads though:

“It is submitted that the appellant be released on bail based on the followings (sic):

10.1 The state of the Appellant’s heath which was never disputed by the state that he is suffering from asthma and using [an] Asthma pump.

10.2 The fact that the alleged offence (sic) are old ranging from 2015 and 2o16.

10.3 The Appellant never break (sic) any bail condition or nevertheless commit schedule one offence while out on bail.

10.4 The fact the state is relying of preliminary investigation not DNA.”

[14]     The appellant’s heads of argument, with the exception of the quotations of the relevant judgments were not of much assistance to the Court. As I understand the appellant’s argument, he states that he is not a flight risk and that there is no evidence that he will interfere with the investigation or witnesses.

[15]     The appellant deals with this matter on the incorrect premise that the bail application resorted under schedule 5 of the CPA. Counsel for the appellant labours under the incorrect impression that the appellant only needs to prove that his release is in the interest of justice. The appellant needs to prove the existence of exceptional circumstances, which makes his release in the interest of justice[5].

[16]     Appellant stated that the court a quo disregarded the fact that the his

            Grandmother needs assistance to obtain medication from the clinic. This submission is also not correct. The evidence by the appellant was, and the court a quo discussed and found, that there are sufficient assistance for the grandmother to obtain her medication from the clinic.

[17]     So too did the court a quo consider the appellant’s asthma condition and found that there will be sufficient medical care in prison. He is in possession of an inhaler. Asthma is generally not a life-threatening illness if treated, as in  casu with the appellant, with an asthma inhaler

[18]     The appellant testified in the court a quo that he was informed about the fact that he was sought as a suspect in rape cases a week prior to his arrest. This was denied by the relevant investigating officer called to testify by the court. His evidence was of good quality and correctly accepted by the court a quo. It is alleged that the appellant handed himself over to the SAPS when he was arrested on his court appearance in Vaalbank, but this is not correct. The appellant, when questioned by the court confirmed that he did not hand himself over to the SAPS. This evidence and the appellant’s initial attempt to mislead the court a quo was taken into account by the court a quo in reaching its conclusion that it will not be in the interest of justice to release the appellant on bail.

[19]     It was submitted on his behalf that it could not have been the intention of the legislature to legitimise, randomly, the incarceration of persons who are suspected of having committed schedule 6 offences who must  be regarded as innocent until proven guilty in a court of law. It may be so, but a court must always consider the strength of the respective parties’ cases in bail applications. The right to be presumed innocent until proven guilty is a trial right and not a pre-trial right since the court hearing the bail application is not concerned by the guilt or innocence of the applicant, this right is reserved for the trial[6].

[20]     The strength of the State’s case is an important factor to consider, in bail applications resorting under schedule 5 and 6 of the CPA[7].

           Evidence was presented in the court a quo on how the incidents happened, and the investigating officer testified with regard to the DNA results which linked the appellant to these two incidents. The DNA results stemming from a different investigation linked the appellant to the two unsolved crimes. The appellant failed to provide any explanation to the court a quo about the allegations surrounding the DNA evidence. The appellant’s counsel did not really attack the allegations in cross examination, except to deny that the appellant was involved in the two incidents as indicated by DNA evidence. This, in my view, correctly convinced the court a quo that the State had a strong case against the appellant.

[21]     It is trite in our trial courts that a second DNA sample of the appellant is sent to the FSL in order to prepare the section 212(4) statements confirming the analysis of the DNA-samples. This request by the FSL is therefore not indicative of the “weakness” of the State case at all, and was so understood by the court a quo. This argument by the appellant holds no water at all.

[22]     The court a quo correctly found that there is a likelihood that the appellant might evade his trial, in light of the number of serious offences he had been charged with which might lead to very lengthy periods of imprisonment and cause the appellant to evade his trial. The court a quo had the luxury of listening to the evidence of the IO, another IO in the robbery – matter and came to the conclusion that the appellant was not completely honest with the court during his testimony, and attempted to mislead the court with regard to several aspects. Amongst other the reason for his failure to attend court in the Vaalbank – matter. In my view the court a quo was correct in believing the investigating officer regarding the non-appearance of the appellant at the Vaalbank court, which, together with the appellant’s propensity to lie, his failure to deal with the averments against him, makes him a flight risk, and therefore not a candidate to be released on bail.

[23]     At the bail application, the appellant already appeared in another court for another serious violent offence allegedly committed by him, namely robbery with aggravating circumstances, where it is alleged, fourteen fire-arms were robbed.

            The undisputed evidence by the investigation officer of the violence in the rape cases and the fact that fire-arms were used to force the victims into submission was also important.

[24]     The court a quo, having regard to the appellant’s criminal record, outstanding case and the violence involved in these cases, concluded that he has a propensity to commit crimes and will, likely, if released on bail, commit further offences. I might add that the appellant is charged with extremely serious offences which is a ‘pandemic’ in our country. One cannot risk releasing these individuals on the community.

[25]     This Court was taken aback with the bail condition in the Vaalbank – robbery case. The investigating officer in the Vaalbank - matter testified that the reports to him, as instructed by the court, telephonically. This is non-sensical bail condition as it defeats the whole purpose of the condition of reporting. Appellant can call the IO from Russia leaving him under the impression that he is still in the country and will attend the trial. This is mentioned as an aside and this court makes no finding, as it is not privy to the reasons for the condition.

[26]     The appellant disputed that he might interfere with witnesses. This despite the evidence by the IO that the appellant is aware of the address of one of the accused. That is only one of the factors to be considered by a court when considering a bail application and it has to be assessed together with all the other relevant factors.

[27]     In bail applications the court is not called upon to weigh proven facts but to speculate what could happen in future.  A court must assess an applicant’s future conduct in light of existing or historical facts and circumstances[8]. That is exactly how the court a quo went about in considering the application before it.

[28]     The appellant’s personal circumstances, considered by the court a quo, together with the other evidence does not constitute exceptional circumstances justifying it to be in the interest of justice.to release him on bail. This Court cannot fault the court a quo for the conclusion reached.

[29]     Accordingly I make the following order:

           The appeal is dismissed.

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

03 MARCH 2021

DELIVERED ON 03 MARCH 2021 VIA EMAIL DUE TO COVID – 19 RESTRICTIONS

REPRESENTATIVE FOR THE APPELLANT:  UNKNOWN

INSTRUCTED BY: MHLONGO RAMELA ATTORNEYS victor ramawela <mhlongoramawela.attorneys@gmail.com>

REPRESENTATIVE FOR THE RESPONDENT: ADV D ROWLES     Derik D. Rowles <DRowles@npa.gov.za>

INSTRUCTED BY: DIRECTORM OF PUBLIC PROSECUTIONS

DATE OF HEARING:                                               

DATE OF JUDGMENT:                    

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