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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: A 242/2019

DATE: 20-09-2019

 

In the matter between:

 

BRIAN BADER                                                                                                                  Appellant

 

And

 
THE STATE                                                                                                                       Respondent

BAIL APPEAL

PHAHLANE, AJ

[1]          This is an application brought by the appellant to be released on bail pending sentencing proceedings. The application emanates from the Court a quo, (the Regional Court for the Regional Division of Ekurhuleni, held at Springs) pursuant to the dismissal of the appellants' application to be released on bail. The matter came before the Regional Court Magistrate Ms Moila, and is not yet concluded, but the appellant has already been convicted.

[2]          It appears from the record that the appellant was released on warning following his arrest. He was originally charged with four counts and on the 12'h of July 2019, he was convicted of all counts which are:

1.        Pointing of a firearm

2.        Assault with intent to do grievous bodily harm

3.        Reckless endangerment to person or property in terms of s123(b) of Act 60 of 2000 (ie. Discharging a firearm)

4.        Pointing a firearm

 

[3]          Following his conviction, an application was brought to extend the appellant's warning pending sentencing proceedings. The application was refused on the same day and this led to the appellant making an application to be released on bail, which was denied. He did not bring another application based on new facts, but instead opted to lodge an appeal directly to this court. There is no founding affidavit wherein the appellant would ordinarily have specified the grounds upon which his application is based, but these are contained in the Notice of Appeal.

[4]        It is averred in paragraph 2 of the Notice of Appeal that:

2.            The Learned Regional Court Magistrate failed to give any and/or adequate consideration to the following:

2.1     The Appellant gave viva voce evidence in support of his application to be released on bail

2.2     Effectively considering the provisions as espoused in section 58 of the CPA

2.3     That despite the fact that the Appellant stands convicted, and the provisions of section 60(11)(b} of the CPA are applicable, that there is no likelihood that any of the factors propounded in section 60(4) (a-e) of the CPA will come to pass.

2.4     That the evidence of the appellant in support of his release on bail was not challenged during cross-examination by the State.

2.5     That the presence of the appellant, should the court have harboured any fears that he poses a flight risk, could have been alleviated with the imposition of suitable bail conditions.

2.6     That the State adduced no evidence in opposition to the appellant’s application that his bail is extended or that bail be granted to him.

2.7     Granting the appellant bail will not be an infringement on the interest of justice as contemplated in the CPA and the Constitution

2.8     That the Learned Regional Court Magistrate erred to find that the Appellant will in all likelihood commit further firearm related offences if released on bail.

2.9     That the Learned Regional Court Magistrate failed and/or neglected to consider the following implication of the incarceration of the Appellant (by failing to release him on bail):

2.9.1        The financial impact on the business of the Appellant, appellant being a sole proprietor

2.9.2        The inevitable result of the risk of Appellant's business being closed on his family (including two minor sons who is dependant on the appellant for their support) and the employees of the appellant

2.9.3        The inevitable result of the business of the appellant not being able to attend to the needs of approximately 1000 (One Thousand) tenants.

2.9.3.1 & 2.9.3.2 relates to providing services such as electricity and water.

 

[5]          The application before this court is brought in terms of section 65 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as "the Act") which makes provisions for an appeal to a superior court against the refusal of bail in a lower court. The test on appeal is whether the lower court had exercised its discretion to refuse bail incorrectly. The section reads as follows:

 

S65 Appeal to superior court with regard to bail

(1)       

(a) An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.

(b) .. .. .. . .. ... . …

(c) ..... ... ... ......

(2) .. .. . .... .. .. .... ....

(3).... . . .. .. .. .. . ... ...

(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.

 

[6]          Ordinarily an application for bail is premised on the provisions of section 60(1)(a) of the Act which provides that:

 

"An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit".

 

[7]        In terms of this statute, an accused may apply for bail at any stage before his or her conviction and not after conviction.

[8]        The appellant had in paragraph 2.2 of his Notice of Appeal averred that the Learned Magistrate failed to effectively consider the provisions espoused in Section 58 of the Act. This section provides that:

'The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall be released from custody upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his bail, and that he shall appear at the place and on the date and at the time appointed for his trial or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned, and that the release shall, unless sooner terminated under the said provisions, endure until a verdict is given by a court in respect of the charge to which the offence in question relates, or, where sentence is not imposed forthwith after verdict and the court in question extends bail, until sentence is imposed: Provided that where a court convicts an accused of an offence contemplated in Schedule 5 or 6, the court shall, in considering the question whether the accused's bail should be extended, apply the provisions of section 60 (11) (a) or (b), as the case may be, and the court shall take into account-

 

(a)      the fact that the accused has been convicted of that offence; and

(b)     the likely sentence which the court might impose."

 

[9]        I am of the view that the appellant's reliance on this section is misplaced. In my understanding, the section deals with the results and effect of bail that has already been granted. The question that this section is answering is: "what happens after the accused has been granted bail" and furthermore "what is the position after the accused has been convicted". The answer is that such an accused has to be released from custody upon payment or furnishing of a suitable security.

[10]      In terms of the section, his release from custody will last until a verdict is pronounced. It is clear that the bail granted will be revoked at conviction. Should the sentence not immediately follow upon conviction, the court retains a discretion whether to extend bail until sentence is passed.

[11]      It was submitted on behalf of he appellant that the magistrate was wrong in finding that the appellant could not be admitted to bail after his conviction. Further that the magistrate did not properly consider the provisions of s60 (5) (c to e) and s60 (9), as well as the financial prejudice which the appellant will suffer if detained in custody. Counsel stressed that the appellant's business is suffering financial loss by keeping the appellant in custody.

[12]      Section 60 deals with bail of an accused person pending trial and at any stage preceding his or her conviction. The appellant was convicted upon finalisation of his trial and he no longer enjoys the presumption of innocence. In my view, the trial court retained its discretion and such discretion can only be challenged if it was exercised incorrectly.

[13]       In the case of S v Barber 1979 (4) SA 218 (D) at 220E-F the court had the following to say:

"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 for bail. 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".

 

[14]       Advocate Van Der Merwe on behalf of the Appellant submitted that the Magistrate's refusal to grant bail was based on the likelihood that the appellant would commit further offences if released on bail, and more particularly with regards to firearm offences because at the time of his conviction, the Appellant was in possession of his licensed firearms. Advocate Mahomed on behalf of the Respondent submitted that she agrees with the Appellant's counsel that, when the Magistrate refused to grant bail, there was an over emphasis with regards to the use of a firearm by the appellant and that the State had failed in its conduct to request, and should have requested the surrender of the firearms instead of pointing fingers at the appellant. Advocate Mahomed further stated that the concern with regard to this aspect is that the prosecution had during the bail proceedings voiced the appellant's belief or view that pointing a firearm was not a serious offence and that it is not actually an offence'.

[15]      It is important to note that when the State opposed bail in the court a quo, the reasons advanced were that the appellant had during trial proceedings, testified that:

1.        He will carry a firearm and use it anytime he feels like so doing.

2.        He will never approach the police for assistance because he does not trust the police officials.

3.        He does not consider pointing a person with a firearm as an offence.

 

[16]       It is on this basis, as well other factors relating to the interests of justice and of the other people, that the Learned Magistrate refused to grant bail.

[17]       The averments made in paragraph 2.3 of the Notice of Appeal as it appears above, relates to the provisions of s60 (11)(b) and s60 (4) (a-e) respectively. I have already indicated that section 60 deals with bail of an accused person pending his trial and at any stage preceding his or her conviction, hence the provision relates to a likelihood of the accused evading his or her trial; a likelihood of influencing or intimidating witnesses or destroying evidence for example. These issues are no longer relevant. It therefore follows that the section cannot be relied upon by the appellant.

[18]      Advocate Van Der Merwe submitted that in refusing to grant bail, the Magistrate also erred in considering the sentence which is likely to be imposed on the appellant and that there was no reason to keep the appellant in custody pending finalisation of his trial. The Respondent on the other hand submitted that there was wrongfulness in terms of the judgment by the Magistrate and that there is satisfaction on appeal that the Magistrate was wrong. Counsel however indicated that the possible sentence to be imposed on the appellant in relation to the firearm offences and assault GBH could warrant a sentence of imprisonment. She submitted that the Respondent is not opposing bail and there are certain conditions which can be imposed. The Respondent took it upon itself to make a Draft Order wherein the bail conditions are noted as follows:

(a)      That the appellant surrenders          all firearms in his possession to the investigating officer by no later than 14h00 on 23 November 2019;

(b)      That the appellant shall surrender all travel documents to the investigating officer by no later than 14h00 on 23 November 2019

(c) ..............

(d) .............

 

[19]      The date of 23 November raises a concern as to why would a person who has been convicted for pointing and discharging a firearm be given more than two months to hand over his firearms to the investigating officer, if the Respondent finds it necessary that the firearms should be removed from the appellant.

[20]       It is really worrying that counsel, knowing very well the Principles and the Test relating to bail appeals, would make a draft order and submit that the Respondent is not opposing bail.

[21]       Bail appeal is not a process where the State is at liberty to either oppose or not oppose bail. The appellant is already convicted and the test in this proceeding lies on the provisions of section 65 of the Act. None of the counsels were able to refer the court to any particular authority wherein it was decided that a convicted person who applies for bail for the first time after such conviction can be released, pending his sentence. Neither could the court be referred to any authority dealing with the application for leave to appeal wherein the decision of the Magistrate was set aside under the circumstances where a convicted person awaiting sentence could apply for bail for the first time.

[22]       The Respondent having submitted that there is satisfaction on appeal that the Magistrate was wrong, this cannot not constitute a consideration under which the court of appeal should interfere with the decision of the Magistrate in refusing to grant bail.

The court must consider all relevant factors and determine whether individually or cumulatively they constitute exceptional circumstances which would justify the release. The Respondent further submitted that in agreeing with the views of the appellant that the Magistrate was wrong, the Respondent has consulted with the prosecutor who dealt with the matter during the trial proceedings and they both agree that the appellant can be released with certain conditions. One wonders what brought the change of heart in the prosecutor who dealt with the matter in the court a quo as she is the one who opposed bail in the first place.

[23]       Insofar as the aspect in relation to imposing bail conditions is concerned, the court can only decides on this aspect once it is satisfied that the appellant has discharged the onus upon him, to show either that exceptional circumstances exist, alternatively, that it is in the interests of justice for him to be released on bail. It appears from the record that it was submitted that 'it would be onerous or an inconvenience on the appellant to impose a condition where he has to report to the police station as this will interfere with the day to day running of his business'.

[24]       Having said this, the Regional Magistrate found that the appellant had failed to prove, that the interests of justice permit his release on bail. His personal circumstances, as well all other relevant factors were cumulatively taken into consideration.

[25]       In S v Dlamini; S v D/adla and Others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC) the following instructive passage in the judgement by Krigler J, is noted:

"What is of importance is that the grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted".

[26]       There are no grounds to satisfy this court that the decision of the Magistrate was wrong. It is trite that the powers of an appeal court to interfere with the decision by another court to refuse bail are circumscribed by s 65 (4) of the CPA. It is not as if the court of appeal has carte blanche. The requirements of section 65 (4) of the Act were thus not met. I cannot find any fault with the conclusion of the Magistrate and I have no reason to interfere with her decision to refuse the appellant bail.

[27]       In the premise, the following order is made:

The bail appeal is dismissed.

 

 

 

P. D PHAHLANE

Acting Judge of the High Court, Gauteng Division, Pretoria

 

 

 

Heard on                                          : 20 September 2019

Judgment Delivered                       : 23 September 2019

For the Appellant                            : Adv F Van Der Merwe

Instructed by                                   : De Kock Van Heerden Attorneys

For the Respondent                        : Adv S Mahomed

Instructed by                                   : Deputy Director of Public Prosecutions

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