IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

Transcription

1 A NO: 18/2002 C IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between:- ALEX DHIKUSOOKA and THE STATE APPELLANT RESPONDENT APPLICATION MMABATHO LEEUW J COUNSEL FOR THE APPLICANT : R HENDRICKS COUNSEL FOR THE RESPONDENT : H S R R NKE DATE OF HEARING : 09 JUNE 2002 DATE OF JUDGMENT : 20 JUNE 2002 LEEUW J 1. The appellant appeared in the Magistrates Court of Taung on a charge of rape. The complainant is a ten (10) year old child. Pending the investigation of the case, the appellant twice applied for his release on bail

2 which applications were unsuccessful. He consequently filed an appeal to this Court against the two unsuccessful bail applications. 2. The two Learned Magistrates refused to grant the appellant bail mainly on the basis that the appellant has been charged with an offence referred to in schedule 6 and therefore had to adduce evidence which would satisfy the court that exceptional circumstances exist which in the interests of justice permit his release. See section 60 (11) (a) of the Criminal Procedure Act No 51 of (The Act). 3. The personal circumstances of the appellant which were presented in both applications are that the appellant is 38 years old, a Ugandan citizen who has been in this country from 1973; he is employed on a permanent basis as a teacher by the Department of Education but has been issued with a passport that is renewable on a yearly basis. 4. Evidence was presented to the court a quo on behalf of the State to the effect that the appellant is residing in the same area with the complainant and is teaching in the same school with the complainant s mother and further that friends of the appellant threatened and intimidated her because of the charge brought against the appellant. 5. Except for the fact that the appellant admits that he is teaching in the same school as the complainant s mother, he denied that he is residing in the same premises or area with the complainant and also that he was involved with the people who intimidated the complainant s mother.

3 6. He undertook to attend court until the finalization of the case and also to abide by whatever conditions that may be set down by the court if released on bail. His passport was confiscated by the police on his arrest; that he did not commit the offence but that he has an alibi defence. THE LAW: 7. A bare denial by an accused person of the factors mentioned in section 60 (4)(a) (e) of the Act, is not sufficient for the purpose of considering the interests of justice in a bail application. See S v Botha en n Ander 2002 (1) SACR 222 (SCA) at 229 h. 8. Section 60 (11) of the Act places an onerous burden on an accused person to adduce evidence and satisfy the Court that exceptional circumstances exist which would entitle him in the interests of justice to be released on bail, but the bail applicant is not required to prove the existence of factors different to normal considerations listed in ss (4) (9) of s 60. What is required of him, however, is to show that such usual or common factors are, in the context of this case, blended with an element of exception or difference. Per Jafta J in S v Vanqa 2000 (2) SACR 371 at 376 c - d. ANALYSES OF ISSUES: 9. The exceptional circumstances presented by the appellant before the court a quo can be tabulated as follows emanating from the record of proceedings:

4 (a) he was assaulted prior to his arrest and had sustained injuries which required proper medical attention outside prison and that the medical treatment that he receives in prison is inadequate; (b) he is a teacher and therefore his students will be adversely affected if he is not allowed to resume his duties; (c) he denies that he has committed the offence and has an alibi defence and it is therefore probable that he may be acquitted on the offence he is charged with. 10. Counsel for the appellant Mr Hendricks, in his submissions, did not place before me those circumstances which he regards as exceptional circumstances for the purpose of the bail application as required by section 60 (11) (a) of the Act. He mainly concerned himself with those factors that are mentioned in section 60 (4) and has avoided to pertinently submit that the circumstances presented to the Court a quo for the purpose of the bail application, are exceptional relating to the personal or emotional condition of the appellant that render it, in the interests of justice, to release him on bail notwithstanding the gravity of the offence. Compare S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) at

5 p 89 par With regard to the circumstances mentioned above, it would appear that: (a) The appellant is receiving medical treatment whilst in custody, which is provided for by the State; (b) That in view of the nature of the offence allegedly committed, he will be suspended from duty by the Department of Education pending the outcome of the case against him; and (c) That with regard to the alibi defence raised by him, this has still to be tested at the hearing of his trial; but that the State seems to have established a prima facie case at this stage against him. It will therefore be immature to make a finding, from the evidence presented, that there is a likelihood or probability that he may be acquitted of the offence. 12. Consequently, the submissions raised on behalf of the appellant as exceptional circumstances, do not per se indicate that it would be interests of justice to release the appellant on bail. 13. On the contrary, the factors raised by the State on behalf of the Respondent, show the following:

6 (a) That the complainant is a minor who is ten 10 years old; (b) That the appellant is a teacher in the same school as the complainant and the complainant s mother; (c) That the appellant is residing in the immediate vicinity of the complainant and other State witnesses; (d) That the appellant was assaulted as a result of this offence by a member or members of the community prior to this offence; (e) That certain State witnesses were intimidated by persons related to the appellant, which matter is also still pending in the investigation of the police. 14. I am satisfied that the State has succeeded in proving the circumstances referred to in section 60 (4) of the Act and that the appellant has failed in accordance with the provisions of section 60 (11)(a) of the Act to persuade the Court that exceptional circumstances exist that would entitle him to be released on bail in the interests of justice. I find that the court a quo was not wrong in its finding. ORDER: 15. The appeal is dismissed.

7 M M LEEUW JUDGE OF THE HIGH COURT Attorneys for Applicant : DU PLESSIS VIVIERS INC. C/o VAN ONSELLEN & VAN ROOYEN INC. Attorneys for Respondent: DIRECTOR OF PUBLIC PROSECUTIONS