IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION)

LOWER COURT  CASE NO. A/144/08 
HIGH COURT CASE NO. A594/08

In the matter between:

and

JUDGMENT DELIVERED ON 18 FEBUARY 2009

MITCHELL A.J.

[1] The appellants appeal against the refusal of the magistrate in the Strand District Court to grant them bail pending their trial on a charge of murdering the first appellant's husband on or about 14 January 2008. This is the second bail appeal in the matter. The appellants applied for and were refused bail on 27 February 2008. An appeal against that refusal was dismissed by Cleaver J in this Division on 23 May 2008.

[7] No evidence was placed before the magistrate to counteract that adduced by the State at the first hearing. It appeared from the testimony of the investigating officer that evidence available to him suggested strongly that the statement made by the first appellant that she knew nothing of the fate of her husband on 14 January 2008, was wrong. She was implicated by a statement made by the second appellant to the police, to the effect that the first appellant had assisted in cleaning the bloodstains in the house that morning. She was implicated further by witnesses from whom she had allegedly purchased new carpeting for the main bedroom later the same morning.
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[8] The affidavit by the second appellant which was submitted at the first bail application was also contradicted by her own earlier statement to the police and by the fact that evidence had been found of blood spatters in the main bedroom, signs of extensive cleaning and the replacement of the carpets.

[9] Added to this is the fact that the curtaining used to wrap the deceased's body apparently came from that bedroom. This, and the fact that the injuries described during the post-mortem were not consistent with the (partially exculpatory) statement made by the brother of the appellants, Francis Kameze, serve to cast serious doubt on the reliability of his attempts to exculpate his sisters in his statement and (at least impliedly) in the two letters written by him to them and translated by the first appellant.

'Murder, when -
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(a)     it was planned or premeditated;

(d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy. '
Otherwise, it would fall under Schedule 5. The difference relates to the onus that an applicant for bail must discharge. In the case of a Schedule 6 offence, exceptional circumstances justifying the release of the applicant on bail must be established.

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participated in the crime in common purpose with each other, which would bring the crime within the ambit of Schedule 6.

[14] I shall, however, assume in favour of the appellants that the offence is one falling under Schedule 5.

[16] The investigating officer testified that he was concerned that the appellants may interfere with State witnesses if released on bail or tamper with as yet undiscovered evidence such as the carpets removed from the main bedroom or the murder weapon. There is no suggestion that either has since been found.
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[17] In this regard, too, the statements of the appellants that they will not do so can carry little evidential weight.

[18] I have given earnest consideration to the question of the best interests of the children of the appellants. Their continued separation from their mothers will undoubtedly cause them hardship, although it appears that arrangements for visits have now been put in place. Their interests must, however, be balanced against the public interest of ensuring that the appellants do stand trial for the offence charged. In my opinion, the flight risk and the risk of tampering with witnesses and evidence outweigh the interests of reuniting the children with their mothers. No evidence was adduced at the second bail application to show that the circumstances in which the children currently find themselves are actively harming them.

[20]   In the result, the appeal is dismissed.

D. R. MITCHELL, AJ