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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: SS 15/2017

In the matter between:

MAXWELL ZWELITHINI ZONDI                                                                           Appellant

and

THE STATE                                                                                                       Respondent

 

JUDGMENT

 

STRYDOM J :

INTRODUCTION

[1] This is a full court bail appeal, with leave to appeal having been granted by the Supreme Court of Appeal against the refusal of bail, on 28 November 2019 by Acting Judge Mogotsi sitting in this division (“the court a quo”).

[2] The trial court convicted the appellant on 14 November 2017 on two counts of murder, three counts of attempted murder and the unlawful possession of a firearm and possession of ammunition.

[3] On 28 March 2018, the appellant was sent to life imprisonment on the murder counts and imprisonment on the remaining counts, which was ordered to run concurrently with the life imprisonment sentence.

[4] On 22 January 2019 leave to appeal was refused against the conviction and sentence by Judge Monama, the trial judge in this matter.

[5] The appellant filed an application for special leave to appeal against the convictions to the Supreme Court of Appeal.  On 5 August 2019 leave to appeal to the full court of this division, sitting in Johannesburg, was granted against only the conviction of appellant.

[6] The appellant is aggrieved by the decision of the court a quo and principally on the basis that the appellant obtained leave to appeal from the Supreme Court of Appeal, which, according to the argument before us, indicates by implication that a reasonable prospects of success does exist on appeal.  It was argued that if this fact is considered, together with the manner in which the appellant stood his bail during the course of his trial, he should have been granted bail pending finalisation of the appeal.  It was submitted that the appellant was not a flight risk.  He handed himself over to the police when so requested.  He operated a taxi business and was the owner of taxis.  Considering this, it was submitted that this court should set aside the refusal of bail by the court a quo and substitute same with an order that the appellant is granted bail under strict conditions.

THE TEST ON APPEAL IN BAIL APPLICATIONS

[7] It was submitted that this full court has the power to interfere with the High Court’s decision not to grant bail by applying the same test that is to be applied where the High Court considers an appeal from the Magistrates Court which refused bail.

[8] Section 65(4) of the Criminal Procedure Act 51 of 1977 (“the CPA”) deals with bail appeals from the lower courts to the High Court and determines as follows:

“4. 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.”

[9] I am of the view that the same test should be applied in this bail appeal.  Before this court can interfere with the decision of the court a quo, this court must determine that the decision of the court a quo was wrong.

[10] In State v Barber[1] Hefer J considered the test to be applied as contemplated in section 65(4) and remarked as follows:

“It is well known that the powers of this court are largely limited where the matter comes before it on appeal and not as a substantive application.  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 but exercised that discretion wrongly … Without saying that the magistrate’s view was actually the correct one, I have not been persuaded to decide that it is the wrong one.”

[11] The finding in State v Barber supra was followed in State v Porthen & Others[2] by Binns-Ward AJ but with some qualification.  He found that a court hearing a bail application exercises a wide as opposed to a narrow, or a strict discretion.  At paragraph 16 of Porthen the following was said in reference to State v Botha en ander[3]:

“Insofar as the quoted dictum in State v Barber (supra) might be amenable to be construed to suggest that the appellate court’s power to intervene in terms of section 65(4) of the CPA is strictly confined in a sense of permitting interference only if the magistrate has misdirected him- or herself in the exercise of his or her discretion in the narrow sense, I consider that it would be incorrect to put such a construction on this subsection; certainly in respect of appeals arising from bail applications made in terms of section 60(11)(a) of the CPA. I am fortified in this conclusion by the manner in which the Supreme Court of Appeal dealt with the bail appeal in Botha’s case supra.  See paragraphs [21] to [27] of the judgment.  It is clear that the appeal court undertook its own analysis of the evidence and came to its own conclusions that the appellants had not discharged the onus on them in terms of section 60(11)(a) of the CPA.

(The fact that the appeal in Botha’s case was an appeal from a decision of a bail application by the High Court as the court of first instance does not affect the principle in issue.)”

[12] Binns-Ward AJ then concluded that section 65(4) of the CPA should be construed in a manner that does not unduly restrict the ambit of an appeal court’s competence to decide that the lower court’s decision to refuse bail was “wrong”.

[13] I am of the view that this court can only conclude that the court a quo was “wrong” if it considers all the relevant aspects for and against the granting of bail to the appellant.  If this court then is of the view that the court a quo, in light of all these circumstances, should have granted bail to the appellant, the only conclusion would then be that the court a quo’s decision was wrong.

[14] Thus, to be successful in this appeal the appellant will have to show that the court a quo over emphasized aspects which militate against the granting of bail whilst aspects in favour of the appellant were not given sufficient weight to. It speaks for itself that if this court cannot conclude that the court a quo wrongly weighed up the points for and against the granting of bail, this court would not be at liberty to consider the issue of bail afresh. The court a quo’s decision will have to stand.

WAS THE DECISION OF THE COURT A QUO TO REFUSE BAIL WRONG?

[15] Section 60(11)(a) of the CPA is applicable in this matter as the appellant was arraigned for a Schedule 6 offence.  This section remains applicable when bail pending the outcome of an appeal is considered. 

[16] Section 60(11)(a) reads as follows:

“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 interest of justice permit his or her release;”

[17] The appellant must show that exceptional circumstances exist which in the interests of justice permit his release.  As stated above, on behalf of the appellant, it was argued that these circumstances are to be found in the fact that the appellant obtained leave to appeal from the Supreme Court of Appeal against his conviction.  It was argued that this aspect, together with the appellant’s unblemished record pertaining to the manner in which he stood his bail during the trial and other personal circumstances, constituted exceptional circumstances.

[18] The standard of proof to show “exceptional circumstances” which the appellant had to satisfy, is the civil one, namely, on a balance of probabilities. (See State v Rudolph 2010 (1) SCR 262 (SCA) at [9]; State v Ehrlich 2003 (1) SACR 43 (SCA) at [1]). In State v Botha[4], with reference to various cases,[5] the court found that proof by an accused that he will, on a balance of probabilities, likely be acquitted at the end of the trial constitute “exceptional circumstances”.  The court found as follows:

“Na my mening sou bewys deur 'n beskuldigde dat hy waarskynlik onskuldig bevind sal word, wel as ‘buitengewone omstandighede’ kon dien.”

[19] The appellant before this court relied heavily, but not exclusively, on the fact that he obtained leave to appeal from the Supreme Court of Appeal. It was argued that at least two judges from that court were of the view that he had a reasonable prospect of being successful in his appeal.

[20] Applying the test stated in S v Botha, supra, the appellant, who alleges innocence and claims that he will ultimately be acquitted on appeal, must therefore prove his prospects of success on appeal on a balance of probabilities. 

[21] The question which now arises is whether the appellant before us has shown on a balance of probabilities that his appeal against his conviction will be upheld.  Mr Kruger, acting for the appellant, submitted that the granting of leave to appeal is an indication, by implication, that a reasonable prospect of success on appeal exists. He argued that this aspect should weigh heavily in his client’s favour to obtain bail.  For this proposition he relied on the case of State v Rohde[6].  In that matter, the appellant was found guilty of the murder of his wife and of obstructing the administration of justice in that he concealed the murder to look like a suicide.  He was sentenced to 20 years imprisonment. He obtained leave to appeal his conviction from the Supreme Court of Appeal. Important to note is that in the Rohde matter, the appellant was convicted of murder which fell within Schedule 5, and not Schedule 6 of the CPA.  In the majority judgment of Van der Merwe JA (Maya P concurring), the court found that the appellant established on a balance of probabilities that the interest of justice permitted his release on bail.  This decision was premised on the finding that there was no likelihood that the appellant will abscond and on the fact that leave to appeal had been granted to the appellant to appeal his conviction.  At paragraph 23 the court found as follows:

“Therefore we have to accept that, after having specifically applied their minds to this question, our Colleagues concluded that there are reasonable prospects that the conviction may be overturned on appeal. They no doubt applied the test set out in State v Smith 2012 (1) SACR 567 (SCA) para 7:

‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’”

[22] As indicated above, the Rohde matter is to be distinguished from the case of the appellant.  Appellant has been convicted of a Schedule 6 offence and was sentenced to life imprisonment. For purposes of bail he must now, on a balance of probabilities, establish “exceptional circumstances” to be granted bail.

[23] In terms of section 17(1) of the Superior Courts Act 10 of 2013, leave to appeal may only be given where the judge or judges concerned are, inter alia, of the opinion that –

“(a)(i)  the appeal would have a reasonable prospect of success; or …”

[24] A finding reached on the basis of a consideration of a “reasonable prospect of success on appeal” is something different from a finding reached on a “balance of probabilities”.  If the latter was the standard of proof to meet it would have been the same as the onus requirement in section 60(11)(a), which also requires of an appellant to show on a balance of probabilities that the interests of justice permits his release.  The test for leave to appeal to be granted is less onerous, despite the introduction of the word “would” in section 17 of the Superior Courts Act, 10 of 2013.[7]

[25] Considering that it was found in State v Botha, supra, that exceptional circumstances can only be shown, as far as a pending appeal is concerned, when an appellant on a balance of probabilities can indicate that he or she would be successful on appeal, the mere granting of leave to appeal would not establish such circumstance.  If an appellant wants to rely on the fact that leave to appeal has been granted to satisfy a court that exceptional circumstances have been shown, such appellant will have to show, on a balance of probabilities, that his appeal would be successful.

[26] This would not mean that an appellant cannot indicate additional circumstances which, together with the fact that leave to appeal was granted, establish exceptional circumstances.

[27] In State v Masoanganye[8], the Supreme Court of Appeal held that what was of more importance than merely being granted leave to appeal, was the seriousness of the crime, the real prospects of success on conviction and the real prospect that a non-custodial sentence may be imposed.  The same sentiment was expressed in State v Bruintjies[9] which, as in Masoanganye, supra, pertained to Schedule 6 offences.  It was found that what was required was that the court examine all relevant circumstances and determine whether they, individually or cumulatively, amounted to exceptional circumstances justifying the appellant’s release on bail.  The court at paragraph 6 in Bruintjies found as follows:

“The prospect of success may be such a circumstances, particularly if the conviction is demonstrably suspect. It may, however, be insufficient to surmount the threshold if, for example there are other facts which persuade the court that society will probably be endangered by the appellant’s release or there is a clear evidence of an intention to avoid the grasp of the law. The court will also take into account the increased risk of absconding which may attach to a convicted person who faces the known prospect of a long sentence.”

[28] In Babuile and Others v The State[10]  it was also stated that the prospect of success does not in itself amount to exceptional circumstances as introduced by the CPA.  The court must consider all relevant factors and determine whether individually or cumulatively they constitute exceptional circumstances which would justify the appellant’s release. 

[29] In evaluating the prospects of success, it is not the function of a court of appeal to analyse the evidence of the court a quo in great detail.  As was found in State v Viljoen[11], if this is done it would become a dress rehearsal for the appeal to follow. The consideration whether bail should be granted or not should be confined to reasonable boundaries, subject to the applicable legislation and the rights of an appellant. In Viljoen, supra, these boundaries were not demarcated and it will in my view depend on the circumstances of each case. A decision may be found to be clearly wrong in law or fact without an in depth consideration of all the evidence. In such a case, if other circumstances are in favour of an appellant, it is likely that such an appellant may satisfy a court that exceptional circumstances exist for his or her release on bail in a matter which falls within the ambit of Schedule 6. If on the other hand, the alleged weaknesses of a conviction lies in alleged wrong credibility findings, identity of the perpetrator and/or the trial court’s evaluation of evidence (without providing an exhaustive list of instances) it will be more difficult to convince a court hearing a bail appeal that an appellant has a strong case on appeal. These are the issues the appeal court will be burdened with to consider in detail.

EVALUATION

[30] The court a quo in its refusal of bail considered the personal circumstances of the appellant as well as the fact that he properly stood his bail during the course of the trial. 

[31] The track record of the appellant is a relevant factor but, after conviction and sentence, the situation materially changed.  The appellant now knows that if his appeal is not successful he will have to serve life imprisonment.  The presumption of innocence lapsed and this can no longer assist the appellant.  The appellant was convicted of brutal murders that directly related to taxi violence.

[32] On a consideration of the evidence in this matter, it cannot be concluded that the case of the State is so hopeless that on a balance of probabilities the conviction would be set aside.  The appellant was identified by three state witnesses who saw him firing the shots. They corroborated each other on material aspects. Certain discrepancies were pointed out in their evidence but these are issues the appeal court will deal with. The main attack against the evidence of the state witnesses is premised on the fact that initially they did not name the appellant as the assailant.  An explanation for this was provided by the witnesses, the veracity of which will be considered by the court sitting in this appeal.  This court can only conclude that there remains a reasonable prospect of success on appeal as was found to be present by the learned Judges of the Supreme Court of Appeal granting leave to appeal but nothing more.

CONCLUSION

[33] The court a quo went to some length to consider the merits of the matter and concluded that it would not be in the interest of justice to grant the appellant bail. In my view it cannot be found that the court a quo was wrong in its decision not to grant the appellant bail pending his appeal.

[34] In the result, I make the following order:

(1) The appeal is dismissed.

 

 

__________________________

REAN STRYDOM

JUDGE OF THE HIGH COURT

 

 

I agree:

 

 

__________________________

A. MAIER-FRAWLEY

JUDGE OF THE HIGH COURT

 

 

I agree:

 

 

__________________________

NCJ MNCUBE

ACTING JUDGE OF THE HIGH COURT

 

 

DATE OF HEARING:                      26 March 2020

DATE OF JUDGMENT                   2020

 

Counsel for the State: JMK Joubert

Attorney for the appellant: Mr J Kruger

BDK Attorneys

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