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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A730/06

DATE: 30/08/2006

UNREPORTABLE

In the matter between:

SIBUYI, RICHARD 1^ST APPELLANT

MASHELE, ROBERT KHOMISANI 2^ND APPELLANT

KGOEDI, PAUL 3^RD APPELLANT

BALOYI, SAMSON 4^TH APPELLANT

MTHEMBI, SERIOUS MUCHOVHI 5^TH APPELLANT

AND

THE STATE RESPONDENT

JUDGMENT

MAVUNDLA, J.

1. On the 8 August 2006, I upheld an appeal against the refusal of the regional magistrate to grant bail to the appellants. Having heard submissions on behalf of the appellants and on behalf of the State, I then granted each of the appellants bail in the amount of R10 000,00 with certain conditions attached thereto. It would seem that the appellants or some of them did pay this bail amount. It would further appear that one of the appellants who had paid bail was subsequently gunned down. This Court wants to express its condolence to the families of those dear to them who were associated with this case and who have since lost their lives. Having said that, I proceed to give my reasons for having upheld the appeal.

2. The appellants are facing one count of robbery which was committed at the Benoni police station on the 27 May 2006 when an amount of about R14 million consisting of inter alia US dollars was removed from the exhibit storage room.

3. It is common cause that the offence the appellants are to be charged with falls under schedule 5. The bail application of the appellants falls under the domain of section 60(11) (b) of the Criminal Procedure Act, 51 of 1977. This subsection 11 provides that:

“Notwithstanding any provision of this Act, where an accused charged with an offence referred to—

1. 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, adduce evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release;

2. in Schedule 5, but not 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 the interest of justice permit his or her release.”

4. The State has the onus to establish that it has a strong prima facie case against the accused person who is bringing a bail application. On the other hand the accused person has an onus which he needs to discharge on a balance of probability. In S v Barber.1979 (4) 218 (D&CLD) at 219G- H Court said that:

“It is well known, of course, that, when a court is required to exercise the discretion which it has to allow a detained person on bail, the court in effect has to balance the detainee’s right to liberty against the interest of justice. It is not always easy to do that but, as has been stated in a number of cases to which I do not intend to refer again because they are also well known, the correct approach appears to be that:

‘The Court will always grant bail where possible and will lean in favour of and not against the liberty of the subject provided that it is clear that the interest of justice will not be prejudiced thereby’”.

5. The appeal has been brought in terms of section 65 of the Criminal Procedure Act. In terms of s65 (4) the appellant bear an onus to satisfy me that the decision by the magistrate in refusing them bail was wrong, vide Phewa and others v S 1997 [1]ALL SA 493 at 496g-i. In the same matter of Phewa and others v S (supra) at 497a Meskin J says that “…in determining whether the appellants have discharged the onus upon them under section 65(4) of the Act I must confine myself to the evidence before me upon which the learned Magistrate’s decision was given.

6. In this case the magistrate after the appeal had been noted, and when she gave her reasons for the refusal of the bail application, she referred to what had transpired in chambers and subsequent to the matter having been postponed. What had transpired in her chambers was, according to her, that she informed counsel for the then accused no.6 that there was no case against accused no 6 and that counsel for no 6 must advise accused no 6 to relocate and only return when the case is coming to court because she was of the view that once released his life will be in danger. The bail application was on the 14 June 2006. Judgment was passed on the 22^nd June 2006. Accused 6 was gunned down by a sniper on the 23^rd June 2006.

7. During argument of the appeal, I directed a question to both counsel for the state and counsel for the appellants as to whether in the consideration of the appeal, must this Court put into the equation what has been recorded by the magistrate post his decision in refusing the appellants bail. On behalf of the appellants it was submitted that it would be incorrect for this Court to have regard to what the magistrate has recorded, since the basis of what she conveyed in chambers did not form part of the bail application or the record thereof and it was never canvassed in court. Secondly it was further submitted that there were two other suspects in this matter who had died whilst in the custody of the police, and that another person who is a potential state witness and was in protective custody has also mysteriously disappeared whilst in the protective custody of the police and that the inference to be made is that the appellants would not be safe whilst in custody. But besides , so did the argument go, there is no evidence on the record as to the circumstances relating to the killing of the then accused no 6, nor is there any evidence that such killing had anything to do with this case. On the contrary the other two now deceased suspects died while in the hands of the police, this clearly indicate that the appellants are not safe while in the custody of the police and the inference is that they are being eliminated by some members of the police

8. On behalf of the State it was submitted that this Court should have regard to the developments after the magistrate had refused the appellants bail ,since it was indicative of the fact that it is not in the interest of justice and the appellants that they be granted bail. There was however no formal application to place before this Court new evidence referring to the subsequent killing of the deceased, the then accused no 6.

9. I need further point out that this Court sitting as an appeal court derives its powers from section 22 of the Supreme Court. The Court has the power to, inter alia, to receive further evidence either orally or by deposition before a person appointed by the court, or to remit the case to the court of first instance, for further hearing of evidence which only came after the judgment has been given, provided that such facts were material to the facts that existed at the time of the judgment. However, such power must be exercised very sparingly and only in exceptional circumstances, vide Van Eeden v Van Eeden 1999 (2) SA 448. In casu the killing of the then accused 6 only materialized subsequent to the bail having been refused. In the matter of S v Sithole 1988 (4) SA 177 (TPD) at 180 A the Court cited from the Appeal Court’s decision in the matter of Goodrich v Botha and Others 1954 (2) SA 540 (A) where Schreiner AJ said at 546A:

‘In general there is no doubt that this Court in deciding an appeal decides whether the judgment appealed from is right or wrong according to the facts in existence at the time it was given and not according to new circumstances which came into existence afterwards. It was so stated in R v Verster 1952 92) SA 231 (A) and in R v Hobson 1953 (4) SA 464 (A).’” The Court in the Sithole case (supra) was dealing with an appeal on sentence. It went on to state at 180I-J that it is only in exceptional circumstances and where there is no alternative remedy that a Court will take into account new facts that came to existence after the judgment appealed against in deciding the appeal. This is however within the discretion of the Court hearing the appeal. In casu, the State did not apply for the placing on record of the said facts. These came on record, with respect to the magistrate, via backdoor.

10. As it is stated in the Phewa case(supra) as well as the other authorities herein above, the court of appeal is confined to look at the four corners of the record from the lower court. Besides, the alternative remedy for those remaining appellants is to exercise their choice and not to pay bail. In the determination of their appeal I have decided to disavow myself of the unfortunate subsequent fatal event.

11. In K v S 2003 [1] SACR 551 (SCA) at 555 par15 the Court said that:

“In the context of section 60 (11)(a) of the Act the strength of the State case has been held to be relevant to the existence of “exceptional circumstances”: S v Botha en ander 2002 (1) SACR 1 222 (SCA) at paragraph [21], S v Viljoen 2002 (2) SACR 550 (SCA) at paragraph [11]. There is no doubt that the strength (or weakness) must be given similar consideration in determining where the interest of justice lie for the purpose of section 60 (11) (b). When the State has either failed to make a case or has relied on one which is lacking in detail or persuasion that the court hearing a bail application cannot express even a prima facie view as to its strength or weakness the accused must receive the benefit of doubt.”

12. In the matter of Porthen and others v S 2003(3) ALL SA 725 (C) at 726i- 727d the court said that:

“The appeal to this Court was in terms of section 65 of the

CPA. In terms section 65(4) of the CPA this court is not entitled to set aside the decision against which the appeal is brought , unless it is satisfied that ‘the decision was wrong.” Section 65(4) of the CPA provides:

‘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 opinion the lower court should have given.’

In S v Barber 1979 (4) SA 218 (D) at 220E-H, Hefer J (as he then was) remarked as follows in the context of deciding an appeal in terms of section 65(4) of the CPA: “It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not on the substantive application for bail. This Court has to be persuaded that the magistrate although this Court may have a different view, it should not substitute its own view for the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it 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 exercised that discretion wrongly.”

13. Where the accused person has placed before the court a quo evidence which shows that, on a balance of probability he was not present at the scene of the commission of the offence and that he would most possibly be acquitted this factor would amount to an exceptional circumstance, vide S v Both and another 2002 (1) SACR 222 at 230 paragraph 21, as well as the authorities referred thereat inter alia (S v Mauka 1999 (2) SACR 479 (W) at 488a-b; S v Mohammed 1999 (2) SACR 507 (C) at 517i-j; S v Yanta 2000(1) SACR 237 (TK) at 243j. In casu, since it is schedule 5 that is applicable, all what the appellants need to show is that it is not in the interest of justice that they must be further incarcerated. The weakness of the States’s case against them is, in my view an important aspect for consideration as to whether they should be denied bail.

14. In S v Lukas & others 1991 (2) SACR 429(E) the court cautioned that the court should “be astute not to simply accept the ipse dixit of the investigation officer or other policeman who testify on behalf of the state and should consider the possibility that such witness may have an improper motive in opposing bail.”

15. In their respective notices of appeal the ground of appeal raised are the same and I shall refer to these collectively as set down herein below:

15.1. The magistrate erred in not finding that the appellants are not a flight risk and that they would in all likelihood stand their trial;

15.2. The magistrate erred in not finding that no evidence suggests that the appellants might interfere in the police investigation, save for the unsubstantiated opinion of the investigating officer:

15.3. The magistrate erred in finding that the mere fact some of the appellants were police officers, indicate that they may interfere in the investigation;

15.4. The magistrate erred in not finding that the evidence against the appellants is so weak, that the State will in all likelihood not be able to prove its case:

15.5. The magistrate erred in not finding that the torture of the appellants by the police will in all likelihood render any statements in which they may have incriminated themselves and or in any subsequent pointing out, inadmissible, thereby weakening the State ‘s case considerably;

15.6. The magistrate erred in not finding the torture of the police was merely to punish the appellants, and not to obtain information, in view thereof that the only evidence on record indicates the opposite.

15.7. The magistrate did not place enough emphasis on the personal circumstances of the appellants:

15.8. The magistrate overemphasized the seriousness of the offence:

15.9. The magistrate overemphasized the fact the investigation is not yet complete, in deciding the question of bail; There was no cogent reason given in the magistrate’s judgment.

16. In bringing the bail application, all the appellants filed affidavits in support thereof. They stated their respective residential addresses, the value of their respective properties both movable and immovable, and the duration of their stay. They further averred that they had been tortured. Some of the appellants attached to their affidavits J88 report completed by a district surgeon showing burn marks, in other instances at their private parts, which injuries the doctor described as being consistent with history of torture with electric prods.

17. They also indicated that as the result of the torture they were forced to do some pointing out. Some of the appellants were arrested as the result of having been pointed out by some of the appellants, who state that it was as the result of having been subjected to torture that they made self- incriminating statements against themselves as well as incriminating statements against some of the appellants.

18. Section 35 Constitution guarantees;

(1) An arrested person the right (a) to remain silent; (c)not to be compelled to make any confession or admission that could be used against him,..(f) To be released from detention if the interest of justice permits, subject to reasonable conditions;

(2) a detained person a right (b) to choose and consult with a legal practitioner and to be informed of this right promptly;

19. The presence of the injuries as reflected in the J88 tends to corroborate the averments of the appellant that they were subjected to torture. The courts are very strict in the interpretation, protection and the development of the human rights and in particular the Bill of Rights. Where there is a violation of the fundamental rights as enshrined in the Bill of Rights, the Courts will lean in favour of the victim whose rights have been encroached upon. Where there is a confession extracted by means of unorthodox means in clear violation of the Bill of Rights, the probabilities are that such confession would be thrown out. Besides, a confession is not admissible as evidence against a co-accused. There was a violation of the rights of the appellants in not having been afforded an opportunity to legal representation before such statements were taken from them. All these factors go towards weakening the strength of the State’s case against the appellants. I am of the view that the magistrate did not place sufficient weight on this aspect to the benefit of the appellants and she was therefore wrong in that regard.

20. Against this backdrop of the appellants, the State in opposing the bail application filed an affidavit of the investigating officer, superintendent Clifford Gorane. In his affidavit the superintendent confirmed the addresses of the appellant, he confirmed that the 2^nd, 3^rd and 5^th appellants were in the employ of SAPS and that they have been suspended from SAPS pending the finalization of this case. He confirmed that Solly and Mike died while they were in the custody of the police and that a section 204 witness has since escaped from police protection witness. The investigating officer further conceded that without some of the potential state witnesses there is no evidence against some of the appellants. In respect of the 2^nd appellants the State’s case is circumstantial since various calls were made from a mobile phone from a particular pole nearest to the police station where the crime was committed. He said that there were other suspects whom they were still looking for. He did not state as to how soon are they likely to have those other suspects arrested.

21. Where the State opposes bail and it decides to do so by way of an affidavit and not calling the investigation officer into the witness box, the mere say so of the investigation officer must not be placed higher than the testimony of the applicants, vide S v Boeck 2000(2) (SACR) 185(T) at 186h-I. The investigating officer must be subjected to cross-examination as to why he opposes bail. This was not the case. The magistrate should have found that the appellants have discharged the onus placed on them, ` and found that on the preponderance of probability the interest of justice permits their release.

22. The magistrate, whilst he found that case of the State was weak, he decided otherwise in respect of the appellants. In my view, in the light of the evidence showing that there was torture employed on some or all of the appellants and that most probably the confessions and or admissions and the pointing out that the appellants have made will be thrown out, the magistrate should have concluded that the case of the State is not very strong, and as the result he was wrong in deciding otherwise. The strength or weakness of the State’s case is an important factor to have regard to in a bail application, vide K v S 2003 [1] SACR 551 (SCA) at 555, S v Botha en ander 2002 (1) SACR 1 222 (SCA) at paragraph [21], S v Viljoen 2002(2) SACR (supra).

23. The magistrate in his judgment said inter alia that: “The court understand that the police and specifically the Violent and Organized Crime Unit here, the Serious and Violent Offences Crime Unit here in Benoni into whose offices the break-in occurred is not only embarrassed about the incident, but certainly the indignation about the extreme violation of trust by their own colleagues in the unit would have had no bounds. This is not an attempt to be clairvoyant….And it is quite understandable that when such members are identified that there would be a lot of anger directed at them from their colleagues. Although the court can never condone an assault on any suspect, one can envisage that the provocation in being betrayed, can lead to such individuals being manhandled or even assaulted by their fellow worker. If your own dog bites and it bites you, it is human nature to retaliate”.

24. In making such utterances which creates an impression that subliminally the magistrate condones or understands the torture upon the appellants by their colleagues, it cannot be said that the appellants had a fair trial in the adjudication of the bail application, particularly when coming to placing weight of this torture and the potential weakening effect it has on the State’s case. I am of the view that the magistrate was wrong in this regard and her failure to place sufficient weight on this aspect has been prejudicial to the appellants. This must be seen in the context that the appellants have stated that they are fearful for their lives whilst in police custody.

25. In the light of the above, I came to the conclusion that the magistrate was wrong in refusing the appellants bail.

25. In the exercise of my discretion , I have decided to amend the bail conditions that I had initially attached to the bail.

25. In the premises I make the following order:

1. The appeal is upheld.

2. Bail in the amount of R 10 000.00 in respect of each appellant is fixed, subject to the following conditions:

1. The appellants must attend Court on every day the matter is proceeding until the matter is finalised.

2. The appellants must report to the nearest Police station of their residence twice in a month, between 8h00 and 16h00.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE: 08/08/ 2006

DATE OF JUDGMENT: 29 AUGUST 2006

APPICANT`S ATT: A KNIGHT

APPLICANT`S ADV: SWANEPOEL

DEFENDANT`S ATT:

DEFENDANT’S ADV: BESSINGS

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