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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

BAIL APPEAL NO: A39/2020

DPP REFERENCE NUMBER: JAP 2012\183

In the matter between:

NANDO, MACOVELA                                                                                      APPELLANT

versus

THE STATE                                                                                                  RESPONDENT

Bail appeal dismissed

JUDGMENT

DE VILLIERS, AJ

[1] This is a judgment in an appeal against the refusal by the learned magistrate Ms J K Persutam to grant bail to the appellant. Judgment was handed down on 6 February 2020 in the Booysens Magistrates Court.

[2] The point of departure in considering the appeal, is the Constitution. The Bill of Rights therein includes the right to freedom in section 12(1), and in particular, in this case, section 35(1)(f):

“Everyone who is arrested for allegedly committing an offence has the right-

(a) …

(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.”

[3] The Constitution is the supreme law, and the obligations imposed by it must be fulfilled (section 2). The Bill of Rights applies to all law and binds inter alia the judiciary (section 8). It empowers a person to approach a court alleging a right under the Bill of Rights has been infringed upon (section 38). A right under the Bill of Rights may be limited in terms of section 36(1) by a:

“ … law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.”

[4] In addition to the Constitution, a court has an inherent Common Law jurisdiction to grant bail.[1] The Constitution retained that right under section 39(3):

“The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.”

[5] In this case, the approach to this court was based on the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act” or “the Act”), a law of general application as contemplated in section 36 of the Constitution. Its constitutionality is not in issue before me. In interpreting legislation, in this case the Criminal Procedure Act, this court “must promote the spirit, purport and objects of the Bill of Rights” in terms of section 39(2) of the Constitution.

[6] The enabling law for an application for bail, is only part of the context. The Crisis of Criminal Justice in South Africa”[2] should perhaps be repeated, compulsory reading for lawyers. Cameron J makes the point[3] that in 2001-2002 the detention periods for awaiting trial detainees ranged from four days to four years and even longer. In the 2017/2018 year there were about 164 129 prisoners in South Africa (46 260 remand detainees, and 117 869 sentenced offenders).[4] The consequence is gross overcrowding of our prisons. Also in the 2017/2018 year, overcrowding was at 138 per cent (164 129 average prison population against 118 723 bed spaces).[5] The author summarises (footnotes omitted):[6]

“Overcrowding has a double impact. First, it negatively affects the well-being of prisoners. Secondly, it impedes good governance and administration of a prison. High-risk behaviours (violence, sexual violence) become rampant. The risk of transmitting diseases (such as HIV and tuberculosis (TB)) is higher than outside prison. Mental health problems persist or arise, but without treatment. And, perhaps most frighteningly, gangs and drugs flourish in overcrowded prisons.”

[7] I would not do justice to the article to summarise it further. The author states (footnotes omitted):[7]

“Let us go back to the very purpose of bail. Bail is there to ‘strike a balance between the interests in society (the accused should stand trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of the trial, he is presumed innocent’. What is more, as the Constitutional Court has pointed out, ‘[b]ail serves not only the liberty interest of the accused, but the public interest by reducing the high number of awaiting-trial prisoners clogging our already over-crowded correctional system, and by reducing the number of families deprived of a breadwinner’. Furthermore, bail is not meant to be punitive.”

[8] In addition, detention before conviction places employment and even the ability to prepare a defence, at risk.

[9] In general, an accused person is entitled to be released on bail in terms of section 60(1) of the Criminal Procedure Act at any time before conviction. The wording of section 60(1)(b) is that the court must be “satisfied that the interests of justice so permit” to release the person on bail. The wording of section 35(1)(f) of the Constitution is that such a person has the right to be released from detention if the interests of justice permit. The wording of the Act is not fully synchronised with the Constitution.

[10] The Criminal Procedure Act seemingly limits the discretion of a court to grant bail. It prescribes five grounds in section 60(4) where “(t)he interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established”. The next few subsections (sections 5 to 8A) give content to each of these five grounds by listing additional factors to be considered. However, these legislated factors are in the nature of a codification of then existing legal principles.

[11] Section 60(9) further lists factors the court must consider when it weighs the interests of justice against the right of the appellant to his personal freedom, and in particular the prejudice he is likely to suffer if he were to be detained in custody. Still, “… the basic principle in our law is that bail ought to be granted for an Applicant unless it is not in the interests of justice …”.[8]

[12] The appellant’s right to bail is restricted, as he is being charged with a schedule 5 offence. In such a case, section 60(11)(b) of the Criminal Procedure Act requires of the appellant to adduce “evidence which satisfies the court that the interests of justice permit his or her release”. It is a more stringent provision than those that apply to less serious crimes, but less stringent than the more serious crimes listed in Schedule 6 and dealt with in section 60(11)(a) of the Act.

[13] The restrictions on the appellant’s right to bail are also applied on appeal. Section 65(1)(a) of the Criminal Procedure Act provides for a right of appeal to the appellant to this court, however section 65(4) limits the powers of this court. The decision of the lower court may not be set aside, unless this court is “satisfied that the decision was wrong. 

[14] Before I address the facts of this case in more detail, I should reflect that these limitations imposed in the Act on the granting of bail have passed constitutional scrutiny in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat[9] (“Dlamini”). The Constitutional Court held that “… the evidentiary material proffered need not comply with the strict rules of oral or written evidence. …”[10]

[15] The Constitutional Court summarised in Dlamini the interpretation of the Act with regard to bail applications according to sections 60(4) to (9) of the Act:[11]

“[42] Making allowance for the substitution of one constitutional formulation of the right to bail for another, it can be seen that ss (4) - (9) are not intended as deeming provisions at all. What those subsections do is to list, respectively, the potential factors for and against the grant of bail, to which a court must pay regard. Admittedly the drafting is by no means perfect and can give rise to misunderstanding in other respects which will be considered shortly, but it is clear that neither ss (4) nor ss (9) commands a court to come to an artificial conclusion of fact. On the contrary, courts are told that, if they find one or more of the factors listed in paras (a)-(d) of ss (4) to have been established, a finding that continued detention is in the interests of justice will be justified. Put differently, judicial officers are pointed towards categories of factual findings that could ground a conclusion that bail should be refused. By like token a court is not enjoined to accord decisive weight to the one or other or all the personal factors mentioned in ss (9). In short, the Legislature was providing guidelines as to what are factors for, and what are factors against, the grant of bail. Whether and to what extent any one or more of such pros or cons are found to exist and what weight each should be afforded is left to the good judgment of the presiding judicial officer. 

[43] Such guidelines are no interference by the Legislature in the exercise of the Judiciary's adjudicative function: they are a proper exercise by the Legislature of its functions, including the power and responsibility to afford the Judiciary guidance where it regards it as necessary. What is more, it is not only a proper exercise of legislative power, but a very welcome one. Here, in conveniently tabulated form, the CPA now first provides (in s 60(4)(a)-(e)) a checklist of the main criteria to be considered against the grant of bail and then proceeds (in ss (5) - (8A)) to itemise considerations that may go to make up  A those criteria. Then, in ss (9) it provides a list of personal criteria pointing towards the grant of bail.

[44] Because we are dealing with optional criteria, it is logical that each of ss (5) - (8A), in spelling out the components of the criteria, appends at the end of its list of specific factors a deliberately vague hold-all provision permitting any other  factor to be taken into account. A court is thus told it may look beyond the listed factors and, even if it does find criteria (listed and/or unlisted) which could tilt the scales against bail, it must ultimately make its own evaluation. A permissive interpretation of ss (4) is therefore borne out by the very fact that the succeeding subsections are open-ended. For it would be pointless to lay down factors that have to be considered and then to tail off lamely with 'any other factor'. Even if there were doubt as to the meaning of the preamble in s 60(4), it should, if reasonably possible, be given a meaning which does not conflict with the Constitution. The learned Judge was therefore not correct in concluding that Parliament overstepped the mark in enacting ss (4) - (9) of the CPA. D 'The interests of justice'.”

[16] The Constitutional Court further held in Dlamini that:

[50] Subsections (4), (9) and (10) of s 60 should therefore be read as requiring of a court hearing a bail application to do what courts have always had to do, namely to bring a reasoned and balanced judgment to bear in an evaluation where the liberty interests of the arrestee are given the full value accorded by the Constitution. In this regard it is well to remember that s 35(1)(f) itself places a limitation on the rights of liberty, dignity and freedom of movement of the individual. In making the evaluation, the arrestee therefore does not have a totally untrammelled right to be set free. More pertinently than in the past, a court is now obliged by s 60(2)(c), (3) and (10) to play a pro-active role and is helped by ss (4) - (9) to apply its mind to a whole panoply of factors  A potentially in favour of or against the grant of bail.

[17]          The Constitutional Court in Dlamini also addressed section 60(11) of the Criminal Procedure Act. The court held that the more stringent requirements of section 60(11)(a) pass constitutional scrutiny. With regard to section 60(11)(b), in issue in this matter, the Constitutional Court held in Dlamini:

“[60] The difference between the two subsections, therefore, lies in the requirement that an accused on a Schedule 6 charge must adduce evidence to satisfy a court that 'exceptional circumstances' exist which permit his or her release. An accused on a Schedule 5 charge, while obliged to adduce evidence, need only satisfy the court that 'the interests of justice' permit his or her release. The main thrust of the objection to s 60(11) was directed at the requirement of 'exceptional circumstances' in s 60(11)(a).];

[61] …

[65] This view is strengthened by a consideration of s 60(11)(b). That subsection stipulates that an accused must satisfy a magistrate that the 'interests of justice' permit his or her release. It clearly places an onus upon the accused to adduce evidence. However, apart from that, the exercise to determine whether bail should be granted is no different to that provided for in ss 60(4) - (9) or required by s 35(1)(f). It is clear that an accused on a Schedule 5 offence will be granted bail if he or she can show merely that the interests of justice permit such grant. The additional requirement of 'exceptional circumstances' imposed by s 60(11)(a) is absent. ...”

[18] The appellant had to satisfy an onus, adduce “evidence which satisfies the court that the interests of justice permit his or her release”. The onus on the appellant is the normal, civil one. The appellant submitted an affidavit in support of his bail application. Bearing an onus, he did not apply the principles required to meet such an onus. He failed to appreciate the difference between alleging a conclusion and also alleging the material facts upon which such a conclusion could be based. See Die Dros (Pty) Ltd and Another v Telefon Beverages CC and Others:[12]

“[28] It is trite law that the affidavits in motion proceedings serve to define not only the issues between the parties, but also to place the essential evidence before the Court (see Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (W) at 323G) for the benefit of not only the Court but also the parties. The affidavits in motion proceedings must contain factual averments that are sufficient to support the cause of action on which the relief that is being sought is based. Facts may be either primary or secondary. Primary facts are those capable of being used for the drawing of inferences as to the existence or non-existence of other facts. Such further facts, in relation to primary facts, are called secondary facts. (See Willcox and Others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602A; Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78I.) Secondary facts, in the absence of the primary facts on which they are based, are nothing more than a deponent's own conclusions (see Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793C - E) and accordingly do not constitute evidential material capable of supporting a cause of action.”

[19] I have referred to section 65(4) of the Criminal Procedure Act that limits the powers of this court in that the decision of the lower court may not be set aside, unless this court is “satisfied that the decision was wrong”. S v Barber[13] held that in deciding to refuse bail, a judge exercises a discretion and held:[14]

“… This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of 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.”

[20] This raises a further difficulty for the appellant as such a discretion would be a true judicial discretion, which could only be overturned “… when it appears that the lower court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.”[15]

[21] What are the facts? The appellant was arrested on 27 March 2019 and appeared in court on 28 March 2019. He has been in custody since 27 March 2019. He and two other accused are charged with the robbery of a cellular phone. The details of the robbery are set out in an affidavit by the investigating officer. This is not a case, as submitted by the appellant, where the court was left in the dark about the State’s case.

[22] The investigation was completed by 7 May 2019. The delay since of the trial has been caused by the three accused obtaining legal representation. The first lawyer for any of the accused was Ms Vakalisa who appeared for the first accused on 4 June 2019. The appellant was first represented by Ms Vakalisa as well on 8 August 2019. She withdrew on 24 October 2019. The appellant obtained representation by 21 November 2019, Mr Jongwana. The other accused has not succeeded in getting representation through Legal Aid until 6 February 2020 when the second accused obtained representation, Ms Hurri. The first accused seemingly is still without representation.

[23] The bail hearing took place by the appellant handing in an affidavit, and the State handing in the affidavit by the investigating officer already referred to. It was common case that the appellant has a South African identity document, and is a South African citizen. Relevant to this judgment are the following averments by the appellant in his affidavit:

[23.1] The appellant stated that he has one other case pending against him. He gave no details of the charge against him. The investigating officer stated that there are two pending matters against the appellant, a further robbery charge and a charge pertaining to the unlawful possession of a firearm. This was still the State’s position when the matter was argued before me. These charges at least increase the risk of the appellant seeking to avoid standing trial. The appellant’s counsel stated that his instructions were that the second charge had been withdrawn, but no such evidence was tendered. A person bearing an onus to satisfy a court that the interests of justice permit his release on bail, ought to have dealt fully with the further charge(s) against him. The appellant at least had to deal with the material facts for the charges. It was common cause that he is in custody on the second robbery charge;[16]

[23.2] The appellant stated that he has one previous conviction for “the possession of dependence producing substance”. He gave no details of the conviction, including what the material facts were, when he was convicted, and what his sentence was, as the appellant ought to have done. The conviction increases the risk of a sentence of imprisonment, if found guilty, and it increases the risk of the appellant seeking to avoid standing trial;

[23.3] The appellant stated that he maintains goods relationships with people, does not bear grudges against them, and is not “disposed to violence”. No facts were alleged from which these conclusions could be drawn, as he should have done. The normal peace-loving person does not face two charges of robbery;

[23.4] Later the appellant merely stated, again unsubstantiated, “… in the unlikely event that I be convicted … “. This is not an assessment of the strength of the State’s case versus the case for the defence, as he should have done if he intended to rely thereon. As the onus is on the appellant, the State does not have to address the strength of its case before the appellant has made out a case calling for a rebuttal. See Mathebula v The State.^[17] A weak defence increases the risk of the appellant seeking to avoid standing trial;

[23.5] The appellant stated that he is presumed innocent of the charges against him. If so, why does he not state his version at least in respect of the two charges for robbery? What he denies, he denies in an ambiguous manner, namely that he-

“… move(s) around our community and rob them from their hard-earned property”;

[23.6] The appellant stated that he will not evade standing trial. Benevolently read, he gave the following reasons for this statement-

[23.6.1] He is committed to see the mater to finality (but gave no reasons for the statement). It is common cause that he has no assets that bind him to a place.[18] He has no occupation that binds him to a place either.[19] These facts increase the risk of the appellant seeking to avoid standing trial;

[23.6.2] He does not have travel documents, presumably meaning a passport.[20] However, clearly our borders are porous;

[23.6.3] He does not want to leave his mother and family behind. Who they are, where they live and how often they saw each other, he did not prove. The State’s case is that the appellant has family in Mozambique, and that his mother is a Mozambican. The State’s case is further that the appellant is single, and has no children, binding him to a place.[21] These facts increase the risk of the appellant seeking to avoid standing trial;

[23.6.4] He is prepared and able to pay an amount of R500.00 towards bail. This is an amount that he would be able to forfeit;[22] and

[23.7] The appellant did not dispute the State’s case that he is unemployed and resides at an address at Turffontein. The appellant gave no detail of his residence for a court to assess the permanency thereof.[23] Depending on the nature of the occupation of the property, the next question would have been with whom he cohabitates at the property, if anyone.

[24] The above averments make out a very unconvincing case for bail. The objective facts do not assist the appellant either:

[24.1] It has not even been suggested that upon conviction in the matter before me a fine or other non-custodian sentence is likely. Likely imprisonment on conviction increases the risk of the appellant seeking to avoid standing trial;[24]

[24.2] As stated earlier, the investigation has been completed for a long time.[25] The delay in the matter has not been due to the State dragging its heels, it has been caused by the delays in the accused obtaining legal representation; and

[24.3] The appellant is accused of committing more than one crime. This increase the risk of the appellant seeking to avoid standing trial, and increases the risk of him endangering the safety of the public.[26] He has a prior conviction. These remarks, are not, as suggested by the appellant, prior findings of guilt in breach of the presumption of innocence.

[25] The main factual factor in favour of granting bail is the period during which the appellant has been in custody,[27] since March 2019, and the likely period until conclusion of the trial.[28] The appellant indeed has spent a considerable period in custody. The other factors that support his application for bail are his constitutional rights, and the fact that he probably does not know the persons who will testify against him.

[26] An appeal is not against the reasons for a judgment, but against its outcome. I must be satisfied that the decision of the lower court was wrong to set it aside. I think it was right. The learned magistrate gave properly reasoned reasons for refusing bail, finding the release of the appellant not to be in the interest of justice.[29] The appellant criticises the learned magistrate’s reasoning, in essence suggesting that the learned magistrate confused the tests under section 60(1)(a) and (b) of the Criminal Procedure Act. I disagree. As reflected above, it is my view that the appellant in his bail application did not meet the test in set out in section 60(1)(b) of the Criminal Procedure Act pertaining to a Schedule 5 offence. The learned magistrate and I are not “satisfied that the interests of justice … permit” the release of the appellant on bail. In my view, we have come to that view by balancing the appellant’s constitutional rights against the permissible and necessary restrictions on those rights, based on the facts of this matter.

[27] Accordingly, I make the following order:

1. The appeal is dismissed.

 

_____________

DP de Villiers AJ

 

Heard on:                                      20 April 2020

Delivered on:                                8 May 2020 electronically, by e-mail

On behalf of the Plaintiff:              Adv NT Jongwana

On behalf of the Respondents:     Adv L R Surendra

 

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