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IN THE HIGH COURT OF SOUTH AFRICA (NORTHERN CAPE HIGHT COURT KIMBERLEY)

In the matter of:

Case number: Date heard: Date  delivered:

CA&R 585/17 21/11/2017
01/12/2017

SIPHO SHABALALA	Appellant

and

THE STATE	Respondent

Coram: Snyders AJ
JUDGMENT

SNYDERS, Al

1.	On 23 May 2017, the appellant was refused bail by Magistrate F Erasmus, a district Magistrate at the Kakamas District Magistrate's Court. This appeal lies against that refusal. The appellant was charged  with  assault  with  the  intent  to  do  grievous  bodily   harm
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("assault GBH") (committed on 06 August 2017), housebreaking with the intent to commit an offence unknown to the State (which took place on 07 August 2017), pointing of a firearm (perpetrated on 07 August 2017) and intimidation (committed on 07 August 2017). The appellant was also charged with two counts rape and assault GBH, committed on 29 November 2016. The offences are categorised a schedule 6 offence in terms of the  Criminal Procedure Act, 51 of 1977 ("the CPA").

2.	In	his  grounds  of  appeal  it	was  contended  on  behalf	of  the appellant that the Magistrate erred in the following respects:
2.1	He did not properly consider the conduct of the appellant during the arrest;
2.2	He failed to consider  the  provisions of s 60(4)(b) of the   CPA;

2.3	He failed to give sufficient consideration  to  the  factors  listed ins  60(11)  of the CPA;
2.4	In finding that there was a strong case against the appellant; and
2.5	By finding that the appellant had not shown exceptional circumstances, which would release in the interests of justice justify his;

3.	The appellant testified during the bail proceedings in  the  court  a qua.	All	the	charges	preffered	against	him	relate	to	one
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complainant. He was in a love relationship with her since 2013 and they resided together intermittently. He denied the charges against him and elected not to testify on  the  merits  of  the  case.  He is  thirty six years old with a fixed  address  situated  at  Keimoes Barracks and has resided there since 01 August 2017. He has been employed by the South African Police Service for the past thirteen years and is presently on unpaid leave. The appellant provides  for  his three minor children, aged four, eight and eleven years, respectively. The four year old son is  the  appellant  and complainant's son. The appellant also supports  his  aged  mother who resides in Johannesburg.  The appellant  is  unable  to  provide for his dependants due to  his absence from  work.

4.	The appellant testified that he has no  fixed  or  moveable  assets or  a passport. He does not  have  any  previous  convictions,  nor pending cases against him. He has  no  health  issues,  aside  from high blood pressure.  When  the  investigating  officer  informed  him of the charges, he says he handed himself over and was informed that the complainant had filed a withdrawal statement. The investigating officer  initially  told  him that  the docket  would  be sent in for a decision but  arrested  him  later that day.  Upon  his arrest, the investigating officer allowed him to buy cigarettes at a certain shop,  while  the  investigating  officer  sat  in  the  car  outside. When
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he returned to the vehicle after purchasing the cigarettes, he was taken to court.

5.	It	also	emerged	during	the	appellant's	testimony	that	the complainant had previously withdrawn the two charges  of  rape  in issue and consequently, the Director of Public Prosecutions ("DPP") declined to prosecute. However, he said  he  understood  that  the  DPP was at liberty  to  re-instate  same.  The  appellant  explained  that, even though the complainant  is  the  mother  of  his  child,  he has a debit order on his bank account to cater for the child's maintenance. He was of the view that none of his police colleagues would risk giving him a  firearm  having  regard  to  the  charges against  him.

6.	It further emerged under cross-examination that the appellant  aims to depart to Johannesburg once he gets paid. He gave the assurance that some of his colleagues know where he resides in Johannesburg. The appellant also plans to apply for a work transfer out of Keimoes.

7.	The investigating  officer testified  to the merits of  the charges.	On

29 November 2016, the complainant had  a  party  at  her  home,  which the appellant attended. She went to sleep after the party and woke up when she felt somebody  on top  of her. She discovered   that

she	was  only			dressed		in		her	brassiere.		She   noticed   that   the appellant was having intercourse with her  without  her  consent  and tried		to		push			him	away .	The  appellant	overpowered	her	and continued to have intercourse with her. After the intercourse, the complainant  went to  sleep on the  sleeper  couch  in the house.	The appellant again approached her and  lay  between  the  complainant and her son.	He  had  sexual  intercourse  with  the  appellant for the second	time		without	her		consent.		After			the	intercourse,		the appellant went to the bathroom and the complainant escaped and jumped through the window . She  ran  to  the  neighbour's  house  in only a towel and seemingly reported the rape  to  them.  The  SAPS found  her  at  the neighbour's  house.	After  the  police collected her clothing, she went to  the  police station  to lay the  charges.

8.	According to the investigating officer, after  the  first  sexual  encounter, the appellant pushed the complainant and  she  fell.  No DNA genetic samples were collected from her and neither did she undergo any medical examinations. On 30 November 2016, the complainant  filed a withdrawal statement,  which reads as  follows:
"... Ek het nadat ek die saak aangemeld het besef dat ek oorhaastig opgetree het. Ek en die beskuldigde is alreeds 7 Jaar saam en het 2 seuns van onderskeidelik 3 en 6 jaar oud. Die Beskuldigde is ook die enigste broodwinner en dit is ook die heel eerste keer dat hy my

so aanrand en verkrag het. Ek wil hom dus nog 'n kans in die /ewe gee... II

9.	Concerning the charges relating to 06 and 07 August 2017, the investigating officer testified that according to the complainant's statement, the appellant threw a bottle at her on 06 August 2017. The incident happened before the court building. The complainant was bleeding from her head where the bottle struck her. She, it appeared, did not intend to lay a charge for this incident. When she reported the incident of 07 August 2017, she mentioned the assault of 06 August 2017. The State opened the docket for the incident of 06 August 2017. There is no affidavit pertaining to this incident and therefore the full factual matrix of that incident was not  provided.

10.	On 07 August 2017, the complainant was  sleeping  at  home  when she woke up to a firearm in her face. The apellant was pointing the firearm at her while she was pleading with him and crying. The appellant said that if he cannot have her,  nobody  would.  He threatened to kill  her  and  then  kill  himself.  She  managed  to convince him not to proceed with his actions. The appellant left the firearm at the complainant's house and went to a shop. After he had  left, she took the firearm and  ran  to  the  neighbour's  house.  The SAPS were summoned and  the firearm was  confiscated.
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11.	According to the investigating officer, on 07 August 2017, the appellant booked out a service weapon at work. In terms of the weapons register, this was the only occasion that the appellant had booked out a service weapon. He had been issued with a personal firearm, which he handed in permanently during 2013. The investigating officer was of the opinion that the appellant  would easily be able to access a firearm. He was further of the view that strict bail conditions would not guarantee the safety of the complainant.

12.	The complainant once again did not undergo medical examinations for the 06 August 2017 assault. Photographs taken of her, however, show her injuries. The investigating officer was not convinced that the complainant would give her co-operation in the trial because on
09 August 2017, the complainant filed a withdrawal statement for these  incidents  and stated  the following:
"... So I have decided to withdraw the case because he apologised to me and promised not to came (sic) to me or disturb me. That I am going to apply for a protection order against him."

13.	What is of interest is the information the investigating officer disclosed regarding the appellant's address at the Keimoes Barracks. He said that the appellant was handed the keys to room numbers 18 and 28 when he lodged his residential application on 02
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August 2017; his application for  accomodation  was  unsuccessful; and although  he had the  keys, he never resided  there.

14.	The Magistrate found that there  were a number  of 'red flags' raised  in the State case, especially the version of  the  complainant  in  refusing to undergo medical  testing  and  withdrawing  the  charges.  He was of the view  that  the  complainant's  level  of  intoxication during the November 2016 incidents, may also play a role  in weakening the State  case.  However, the  fact  that  the complainant fled the house nearly naked to the neighbour's house, clearly shows that something  must have  happened.

15.	The Magistrate reiterated that the recent charges of  August  2017,  had caused the rape charges to be re-instituted, bringing the bail application within the purview of Schedule  6  of  the  CPA.  He  held that the appellant had to show that exceptional circumstances exist which in the interests of justice permit his release on bail. He had regard to the appellant's personal circumstances and the strength of the State case.

16.	What was strange, the Magistrate said, was that the appellant booked out a service pistol; entered the complainant's home; threatened her with the firearm; and relented and left the firearm to go to  the  shop.  Judging  the  case on probabilities, the Magistrate
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found that, though untested, the complainant 's version had a ring of truth to it. He further found that the appellant could easily access a firearm and that stringent bail conditions will not alleviate the  threat. He reasoned that no exceptional circumstances existed which in the interests of justice would permit his release on bail.

17.	Section 60(1l)(a) of the CPA stipulates :

'(11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-
(a) in Schedule 6, the court shall  order  that  the  accused  be  detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been  given  a reasonable opportunity to do so, adduces evidence  which satisfies the  court  that  exceptional  circumstances  exist  which in the  interests of justice permit his or  her  release... '

18.	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."

19.	This court may interfere with  the  Magistrate's  decision  if  it  is satisfied that the decision was plainly  wrong.  The  appellant  carries the  burden to  show that exceptional  circumstances exist.

20.	In S v Viljoen  , the SCA relied on the dicta in S v Jonas and held as follows:
'The term "exceptional circumstances" is not defined. There can be as	many	circumstances	which	are	exceptional	as  the	term	in essence implies. An urgent serious medical operation necessitating the		accused's  absence  is  one that springs  to  mind.  A terminal illness may be another. It would be futile to attempt to provide a list of possibilities which will constitute such exceptional circumstances. To my mind, to incarcerate an innocent person for an offence which he	did	not	commit	could	also	be		viewed	as		an	exceptional circumstance. Where a man is charged with a commission of a Schedule 6 offence when everything points to the fact that he could not have committed the offence because, eg he has a cast-iron alibi, this would likewise constitute an exceptional circumstance.'

21.	Mr Jankowitz, for the appellant , argued that the Sate case is  weak and that this constitutes substantial and compelling circumstances. Even though the complainant withdrew the charges, there  are sufficient  independant  factors  to  substantiate  the  allegations   she

made. She reported the rape to  the  neighbours  in a near  naked stat e. There are photographs depicting the assault GBH. It was common cause that the appellant handed in his personal firearm in 2013 and the State would be able to prove that he booked out the firearm on 07 August 2017. The State could show that the complainant ran out of the house with the firearm and handed it to the police. This demonstrated that something amiss must have happened.

22.	The withdrawal statements of the charges did not entail that the complainant laid false charges against the appellant, but instead set out a number of other reasons for the withdrawal. The test is to determine prima facie the relative strength  of  the  State  case  and  not make a provisional finding  of  innocence  or  guilt.  That  being  said, the appellant has not discharged the onus of  showing  exceptional circumstances which  in  the  interest  of  justice  permits  his release.

23.	I am also of the view that, regard has to be had to the factors listed ins  60 (4) of the CPA,  the relevant part of which reads:
'(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)	Where there is the likelihood that the accused, if he  or  she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or
(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;  or
(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; or
(d)	where there is the likelihood  that the accused,  if  he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
(e)	where in exceptional circumstances there is  the  likelihood  that the release of the accused will disturb the public order or undermine the public peace or  security'

24.	The Magistrate found that the appellant will not evade his trial if released on bail. I  do not  agree.  The appellant expressed  his  wish to obtain a transfer from  his  work  and move  to  Johannesburg.  He did not furnish his Johannesburg address. He also does not have a fixed address at the Keimoes Barracks.  To  my  mind,  this  plays  a role in determining whether there is a likelihood, on a balance of probabilities,  that  the  appellant  will  evade  his  trial.  The  appellant
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was clearly dishonest when he testified about  residing  at  the Barracks.

25.	The Magistrate was concerned with the appellant's access to a firearm and the fact that he entered the complainant's home when uninvited and was not involved in any romantic relationship with  her. The appellant had already faced two rape charges at that time, which were withdrawn at the behest of the  complainant.  Under those circumstances, the Magistrate's reasoning regarding the complainant's safety, cannot be faulted. He stated as follows in the judgment :
"If you did point the firearm at the complainant, something  happened to change your mind. The question is what will happen if there is a next time? The question is, is can I say that there won't  be a next time?

26.	The following was said in S v Mohamed  :

"To sum up:  the  appeal by an aggrieved accused under sec.  97   of the Code to a Superior Court against a decision of a magistrate in respect of his application to be released on bail, is an appeal in the wide sense, that is, it is a complete re-hearing and re-adjudication by the Superior Court of the merits of the application, with  or  without additional information, in which it can, in the exercise of   its

own discretion, make such order as to it seems just; an appeal against its decision lies to this Court under sees. 21 (1), (2), and(3) of the Supreme Court Act, but only with the leave of the Court a  quo, and, if it is refused, with the leave of this Court; on such an appeal this Court will only interfere if the Court a quo committed  such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision."

27.	The appellant's personal circumstances and the strength of the State's case do not consititute the existence of exceptionaI circumstances. The likelihood that the accused may evade his trial and interfere with the State witnesses, do not, in the interests of justice, warrant his release on bail. I am not swayed that the Magistrate excercised his discretion incorrectly. It follows that the appeal must fail.

28.	I therefore make the following order:

1.   THE APPEAL IS DISMISSED.

J.A S

ACTING JUDGE

On behalf of Appellant: On behalf of Respondent:

Adv D Jankowitz (oio Fletcher's Attorneys) Ad v K Ilanga (DPP)