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　　IN

　　THE HIGH COURT OF SOUTH AFRICA,

　　FREE

　　STATE DIVISION, BLOEMFONTEIN

　　 

　　Case

　　number: 226/2022

　　Appeal

　　Number: A17/2023

　　Reportable:

　　YES/NO

　　Of

　　Interest to other Judges: YES/NO

　　Circulate

　　to Magistrates: YES/ NO

　　 

　　In

　　the matter of:

　　 

　　THABO

　　PETRUS THOKOANA

　　                                                                 

　　APPELLANT

　　 

　　versus

　　 

　　THE

　　STATE

　　                                                                                                

　　RESPONDENT

　　 

　　CORAM:       

　　NAIDOO J

　　 

　　HEARD

　　ON:  3 FEBRUARY 2022

　　 

　　DELIVERED

　　ON:     6 FEBRUARY 2022

　　 

　　JUDGMENT

　　– BAIL APPEAL

　　 

　　[1]

　　     The appellant came before me on an urgent

　　basis in an application in which he sought to appeal the

　　refusal of

　　the Senekal Magistrates Court to admit him to bail. It seems that

　　when the bail application commenced before the court

　　a quo,

　　the appellant was charged with Assault with Intent to do Grievous

　　Bodily Harm (Assault GBH). However, during the course of the

　　hearing

　　and after receipt by the prosecutor of the medical examination form

　　J88, the prosecutor decided that the charge should

　　be changed to one

　　of Attempted Murder. This was only revealed just prior to the court

　　delivering its judgment in the bail application.

　　There were other

　　charges also added at that stage, but they did not impact on the bail

　　application. I will touch on this aspect

　　later. Adv RJ Nkhahle

　　represented the appellant in this court and Adv (Ms) S Thunzi

　　represented the State.

　　 

　　[2]     

　　By way of background, the complainant and the appellant were in a

　　relationship. The appellant

　　allegedly assaulted the complainant on 16

　　October 2022. She opened a charge of assault against him and also

　　obtained a Protection

　　Order against him in terms of the

　　. The Protection order was served on the

　　appellant on 17 October 2022. The incident which led to the arrest of

　　the accused in this

　　matter occurred in the early hours of Sunday 30

　　October 2022. The appellant and complainant were in the same tavern

　　at that time,

　　having gone there separately on the previous evening.

　　The state alleges that the appellant indicated that he wished to

　　speak to

　　the complainant, and when she refused, he stabbed her

　　 

　　 in

　　the chest with a broken bottle. He was informed a few hours later

　　that the police were Looking for him. He handed himself to

　　the police

　　on the Monday morning.

　　 

　　[3]     

　　The judgment of the court a quo was assailed, in essence, on

　　the following grounds, namely that the court erred in:

　　 

　　3.1   

　　finding that the appellant failed to adduce evidence to show that the

　　interests of justice permitted his release

　　on bail;

　　3.2   

　　failing to consider the totality of the evidence placed on record by

　　the appellant, including the personal

　　circumstances of the appellant

　　and the concessions of the investigating officer;

　　3.3   

　　over-emphasising the seriousness of the offences and the interests of

　　the community, and in doing so found

　　that the appellant had assaulted

　　the complainant and contravened the provisions of the Protection

　　Order. In so doing, the court

　　contravened the appellant’s

　　constitutional right to be presumed innocent;

　　3.4   

　　placing undue reliance on the investigating officer’s fear that

　　the appellant will not observe any bail

　　conditions as the offence was

　　committed against the backdrop of the Protection Order.

　　 

　　[4]     

　　The appellant’s personal circumstances placed on record, are

　　that he is a forty three (43)

　　year old unmarried man, with three

　　minor children aged twelve (12), ten (10) and four (4) years old

　　respectively, whom he maintains.

　　He is permanently resident in

　　Senekal in the Free State and lives in the Matwabeng Location with

　　his mother, siblings and nieces/nephews.

　　His father passed away when

　　he was very young. The appellant completed Grade 11 at school, but

　　failed Grade 12. He also did not

　　complete his studies in Public

　　Administration but did obtain a qualification as a Basic Ambulance

　　Assistant. At the time of his

　　arrest, he was employed by the

　　Department of Health as an ambulance assistant, earning a monthly

　　salary of Twelve Thousand Five

　　Hundred Rand (R12 500.00).

　　 

　　[5]       

　　He supports his three children, none of whom live with him. In

　　addition, he supports

　　his mother and the other occupants of the

　　residence he shares with them. As I indicated earlier, he heard on

　　Sunday 30 October

　　2022 that the complainant had laid a criminal

　　charge against him and that the police were looking for. As a result

　　he handed himself

　　to the police on the morning of Monday 31 October

　　2022. He asserted that if he is kept in custody, he could lose his

　　employment

　　and, consequently, his ability to support his dependants.

　　He has two pending matters, being in respect of the alleged assault

　　on

　　the complaint on 16 October 2022 and the other in respect of his

　　contravention of the Protection Order that was served on him on

　　17

　　October 2022. The appellant alleged that he had a previous conviction

　　for “drinking and driving” and paid a fine

　　of Two Hundred

　　Rand (R200). The state led the evidence of the investigating officer

　　that the previous conviction in fact was in

　　respect of a charge of

　　resisting arrest. In respect of this matter, he asserted that if the

　　court should set bail, he will comply

　　with any conditions that the

　　court may attach to such bail.

　　[6]      

　　It is common cause that the offences with which the appellant has

　　been charged in this matter

　　fall within the ambit of Schedule 5 of

　　the Act. Section 60(11)(b) of the Act provides that:

　　 

　　(11)

　　Notwithstanding any provision of this Act, where an accused is

　　charged with  an offence referred to—

　　 

　　“(b)

　　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 interests of justice  permit his or

　　her release”.

　　 

　　[7]     

　　Both counsel correctly conceded that section 65 (4) of the Criminal

　　Procedure Act 51 of 1977 (CPA)

　　finds application in this matter. The

　　relevant provision reads thus:

　　 

　　“(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”.

　　 

　　[8]     

　　The Constitutional Court found that several sub-sections of section

　　60 of the Act, including section

　　60(11)(b), were constitutional when

　　it dealt with the cases of S

　　v

　　Dlamini; S

　　v Dladla & others; S v Joubert; S v Schietekat ; (CC).

　　With regard to the right to freedom, the learned authors Du

　　Toit et al in the Commentary on the

　　49, 2012 ch9-p26

　　succinctly summarised the position thus: “In S

　　v Bennett

　　(W) 408e–g Willis

　　J also said that the 'fundamental premise’ is that s 12(1) of

　　the Constitution confers on everyone the right

　　to freedom which

　　includes the right not to be detained without trial, subject to

　　constitutionally permissible limitations in terms

　　of s 36 of the

　　Constitution. See also S

　　v Mabapa

　　2003

　　(2) SACR 579 (T) 583h and S

　　v Petersen

　　(C) at

　　[60] where reference was made to s 35(1)(f) of

　　the Constitution”

　　           

　　 

　　[8]     

　　I turn to the grounds of appeal, which I summarised earlier in this

　　judgment. The starting point

　　for an appeal court is to accept that

　　the court a quo was correct in its conclusions, unless it can

　　be shown that the court misdirected itself in the interpretation and

　　application

　　of the law or the facts. Even if the court did not

　　specifically set out its analysis of the law and the facts, based on

　　what evidence

　　and information was placed before the magistrate, this

　　court cannot assume that the court a quo did not consider or

　　apply its mind to the facts and the law. As indicated earlier, the

　　prosecutor decided, whilst these bail proceedings

　　were in progress,

　　to change the charge from one of Assault GBH to one of Attempted

　　Murder, after receipt of the J88 form, and added

　　the other charges

　　relating to the assault on the complainant on 16 October 2022 and the

　　contravention of the Protection Order.

　　The court proceeded on the

　　basis that the charge was one of Assault GBH, holding that the

　　evidence led was in respect of a charge

　　of Assault GBH. The court

　　delivered a detailed judgment summarising the evidence for both the

　　appellant and the state, including

　　the personal circumstances of the

　　appellant, as placed on record by his legal representative.

　　 

　　[9]     

　　The magistrate considered the submissions of both the prosecution and

　　the defence. One of the

　　submissions made by the defence is that the

　　grounds set out in section 60(4)(a)-(e) (grounds which militate

　　against the interests

　　of justice) are unlikely to be present in

　　respect of the appellant. I pause to mention that section 60(4)(a) of

　　the CPA reads thus:

　　 

　　The

　　interests of justice do not permit the release from detention of an

　　accused where one or more of the following grounds are

　　established:

　　 

　　(a)

　　Where

　　there is the likelihood that the accused, if he or she were released

　　on bail, will endanger the safety of the public, any

　　person against whom the offence in question was allegedly committed,

　　or any other particular person or will commit a Schedule 1 offence;

　　(my highlighting)

　　 

　　The court clearly

　　disagreed with the appellant’s proposition and pondered the

　　appellant’s assertion that he now considers

　　the matter serious

　　and will abide by the conditions set by the court. The magistrate

　　questioned whether the appellant did not consider

　　as serious the

　　opening of a charge against him (on 16 October 2022), the warning of

　　the police officials that he was not to have

　　any contact with the

　　complainant and the terms of the Protection Order, served on him on

　　17 October 2022, which also prohibited

　　contact with the complainant.

　　 

　　[10]     

　　The court was of the view that despite the warnings and prohibition

　　against contact with the

　　complainant, the appellant committed another

　　act of violence against her. This was relevant in its consideration

　　of whether the

　　interests of justice permit the release of the

　　appellant on bail. The court further considered the provisions of

　　section 60(5)(d)

　　of the CPA that “any

　　disposition to violence on the part of the accused, as is evident

　　from his or her past conduct as a factor to be considered

　　in

　　determining whether one of the grounds mentioned in section 60(4)

　　has been established. The court concluded that, based on his past

　　conduct, two weeks earlier, the appellant has a propensity for

　　violence against the complainant and clearly concluded that the

　　ground mentioned in section 60(4)(a) had been established, justifying

　　its conclusion that the appellant had failed to establish that the

　　interests of justice permit his release on bail.

　　 

　　[11]     

　　Mr Nkhahle argued that the incarceration of appellant is an

　　infringement of the constitutional

　　rights of the appellant’s

　　children, as they are being prejudiced by his inability to pay

　　maintenance, I once again cite the

　　exposition of the learned authors

　　Du Toit et

　　al, at

　　RS 63,

　　2019 ch9-p66:

　　“Where

　　the circumstances relied on by a bail applicant include the

　　constitutionally protected interests of a minor child, the court

　　must

　　take due cognisance of the child’s right 'to family care or

　　parental care, or to appropriate alternative care when removed

　　from

　　the family environment’, as provided for in s 28(1)(b) of

　　the Constitution. But whilst the best interests of the child are

　　paramount as determined in s 28(2) of the Constitution,

　　they cannot

　　'simply override all other legitimate interests, such as the

　　interests of justice or the public interest’. See S

　　v Petersen

　　2008

　　(2) SACR 355 (C) at

　　[63]–[65] where Van Zyl J, writing for a full bench, also

　　referred to S

　　v M (Centre for Child Law as Amicus Curiae) 2007

　　(2) SACR 539 (CC), which

　　dealt with the constitutional best interests of a child where a court

　　is required to consider incarceration of a parent or

　　primary

　　caregiver. In Petersen the

　　full bench was satisfied (at [76]) that on all the available facts

　　the bail applicant’s minor child was 'in more

　　than appropriate

　　alternative care, as envisaged by s 28(1)(b) of

　　the Constitution’ and that her best interests could be served

　　by permitting her 'regular and unimpeded access to

　　[her jailed

　　mother] at all reasonable times’ (at [77]).”

　　 

　　[12]     

　　In the present matter, the appellant’s three children are each

　　living with their respective

　　mothers so it is evident that he is not

　　their primary caregiver. No evidence has been placed before this

　　court regarding the employment

　　status of the mothers, whether they

　　are in receipt of a child support grant, or what has been their

　　position since the incarceration

　　of the appellant. Similarly, there

　　are no details as to the ages of the appellant’s siblings,

　　whether any of them is employed,

　　whether the appellant’s mother

　　is in receipt of a state grant, and whether the parents of the

　　nieces/nephews are contributing

　　to their upkeep. There is

　　furthermore, no indication of whether the appellant continues to

　　receive his salary, as the assertion

　　was that if he continues to be

　　incarcerated, he could lose his job. In my view, it is the position

　　in the present matter that the

　　appellant’s children are being

　　appropriately cared for by their mothers. This cannot conclude that

　　the court a quo did not apply its mind to this aspect

　　 

　　[13]     

　　There is a duty upon a court hearing an application for bail to

　　enquire into the accused person’s

　　circumstances and satisfy

　　itself that the interests of justice would not be adversely affected

　　by the release of the accused on

　　bail. The court a quo set out

　　the personal circumstances of the appellant extensively in its

　　judgment as well as in its reasons for judgment. I am constrained

　　to

　　find that the court did not properly take into account such

　　circumstances. The investigating officer made the following

　　concessions,

　　namely, that

　　 

　　·   

　　the appellant is not

　　a flight risk

　　·   

　　he lives with his

　　mother and other people

　　·   

　　that he handed

　　himself to the police, leading to his arrest in this matter, and

　　·   

　　that he did not

　　communicate with the complainant upon hearing of the criminal charge

　　against him, until his arrest.

　　 

　　It

　　is trite that these are some of the factors and circumstances to be

　　taken into account by a court considering bail, and by the

　　court

　　considering an appeal against the refusal thereof. In balancing these

　　factors against those that I have mentioned earlier

　　in this judgment,

　　I cannot fault the reasoning of the court a

　　quo in arriving at the

　　conclusions it did.

　　 

　　[14]     

　　It was argued that the court a quo over-emphasised the

　　seriousness of the offence and the interests of society and in so

　　doing, effectively found that the appellant

　　assaulted the complainant

　　and contravened the Protection Order. Such an argument is, in my

　　view, misguided. The fact of a criminal

　　charge of assault and of

　　contravening the provisions of the Protection Order, pending against

　　the appellant are not in dispute,

　　nor is the fact that those charges

　　pertain to an assault upon the complainant in this matter. The

　　determination of whether it is

　　the interests of justice to admit the

　　appellant to bail must, of necessity, take into account such pending

　　charges, the nature

　　thereof and whether the conduct of the appellant

　　indicates a propensity to violence. The prevalence of the offence is

　　also a factor

　　that the court must consider, which the court a quo

　　did in this matter. The court also correctly took into account that

　　gender-based violence is a scourge that the courts need to

　　address

　　seriously and strictly.

　　 

　　[15]     

　　In the circumstances, the following order is made:

　　 

　　15.1  The appeal is

　　dismissed.

　　 

　　15.2  The refusal of

　　the Magistrate to release the appellant on bail is upheld and

　　confirmed

　　 

　　S

　　NAIDOO J

　　 

　　On

　　behalf of the appellant:                         

　　Adv RJ Nkhahle

　　Instructed

　　by:                                              

　　Thulo Attorneys

　　c/o Molete Attorneys

　　7 Brill Street   

　　Westdene

　　Bloemfontein

　　 

　　On

　　behalf of the Respondent:                   

　　Adv (Ms) S Thunzi

　　Office of the DPP

　　Bloemfontein