Director of Public Prosecutions v Ngobeni (A358/2023) [2024] ZAGPPHC 1341 (29 November 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: A358/2023

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO THE JUDGES: YES/NO

(3) REVISED: YES/NO

SIGNATURE:

DATE: 29/11/2024

In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

And

BETHUEL NGOBENI

Respondent

JUDGMENT

MOSOPA, J

1. This is an appeal against the granting of the Respondent's bail on the 27 October 2023, in terms of section 65(A)(1)(a) of Act 51 of 1977 by Magistrate Thupatlase, in the Oberholzer Magistrates court.

2. Section 310A makes it peremptory for the appellant to first apply for leave to appeal and such application must be dealt with by the Judge in Chambers'. It is further a requirement on the appellant, to make

such an application within a period of 30 days of the decision or within such extended period on application in good cause.

3. For the sake of completeness, I find it prudent to make reference to the particular provisions which provides as follows;

"[310A](1) The attorney-general may appeal against a sentence imposed upon an accused in a criminal case in a lower court, to the provincial or local division having jurisdiction, provided that an application for leave to appeal has been granted by a judge in chambers.

(2) (a) A written notice of such an application shall be lodged with the registrar of the provincial or local division concerned by the attorney-general, within a period of 30 days of the passing of sentence or within such extended period as may on application on good cause be allowed."

4. Section 65(A)(1)(b) of Act 51 of 1977, makes following provision;

"(b) The provisions of section 310A in respect of an application or appeal referred to in that section by an attorney-general, and the provisions of section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of paragraph (a) of this subsection."

5. Reference to Attorney-General in the subsection should be construed as reference to the Director of Public Prosecutions.

6. The appellant complied with the provisions of section 310A of Act 51 of 1977, save for the fact that when the application for leave to appeal was filed, it was late with 3 days. It means that the appellant was supposed to file their application for leave to appeal on the 27 November 2023, application for condonation of the late filing of the application for leave to appeal was also filed on the 30 November 2023.

7. When the matter served In this court for hearing on the 13 November 2024, the application for leave to appeal had not been determined by a Judge in chambers.

8. It was agreed by the parties that I determine the application for appeal, condonation for its late filing and the appeal itself. I firstly heard the arguments in the condonation application and after hearing the arguments I made an order granting the appellant condonation for the late filing of the leave to appeal application, without providing reasons for such an order.

9. The appellant gave reasons for the delay in applying for leave to appeal, and such can be succinctly summarised as follows, that after an instruction was given to appeal the decision to grant the respondent bail, necessary arrangements were made and the record for the bail application of the 20 December 2022, wherein the respondent was denied bail were obtained. On the last day of filing of the application for leave to appeal, instructions were given that such

application, be filed without the records of the 27 October 2023 as they were not available at that stage.

10. It was discovered on the 24 November 2023 that the application was not properly paginated and indexed as such, they had to re-do the whole process. The records of the bail hearing of the 27 October 2023 were received by the appellant by way of email on the 24 November 2023 at 11h28.

11. It is because of the late receipt of that record that it necessitated the appellant to attend to the amendment of the grounds of the application for leave to appeal and to add that record to the bundle of documents to be filed, which then resulted in the application being filed out of time.

12. In contention, Mr Osborne on behalf of the respondent argued that the appellant did not have to wait for the transcripts to file their application. That the appellant is not in compliance with Rule 27 of the Uniform Rules of Court in that, the appellant failed to apply for the extension of time and that the prejudice that the respondent is going to suffer is associated with the main application, which is the bail appeal.

13. Section 310A(1)(b) does not make it a requirement for the appellant to apply . for extension of time, but to show good cause why the application is late. There are a number of aspects that come to play, amongst them the aspect relating prospects of success, reasonable reasons for the delay, prejudice on the part of the party against whom an application is brought and finally the length of time that has passed since the decision and when the application was filed.

14. In my considered view, three days is not an inordinate delay, and I do not see the respondent suffering any prejudice hence I granted the application for condonation for late filing. There is a reasonable explanation for the 3 days which can be attributed to the appellant filling its leave to appeal application late.

15. The condonation application is entwined with the leave to appeal application and as a result, it was also granted. During the condonation hearing, it was brought to my attention that since the appellant filed its application for leave appeal the Deputy Judge President could not immediately allocate the matter to a Judge in Chambers for its determination. Several meetings were held by the Deputy Judge President and the parties when the matter was transferred to this court and it appeared that several judges in this division decided other bail appeals of the respondent's co-accused excluding them from hearing the bail appeal of the respondent until the matter was allocated to me. No date that suit both Counsel could be immediately obtained which caused the matter to be further delayed. Blame cannot be apportioned to any of the parties.

BACKGROUND

16. The respondent was arrested on the 04 October 2022 at his home, and was arraigned in the Oberholzer Magistrate's court on the number of charges which consists of amongst others of the contravention of Prevention of Organized Crime Act 121 of 1998 ("POCA") which includes the managing of an enterprise, pattern of racketeering activity, unlawful acquiring and possession of unwrought gold and its smelting, money laundering and contravention of the Immigration Act 13 of 2002, allegations made being that he illegally entered and remained in South Africa.

17. The first bail application of the respondent was determined on the 12 December 2022 and bail refused on the 20 December 2022, and the bail was dealt with in terms of Schedule 5. In that bail application, the respondent did not testify but presented evidence by way of an affidavit and the following was provided;

17.1. He was born on the 8 February 1984, and a South African citizen, born at Bushbuckridge, Mpumalanga Province;

17.2. He is married with seven children in terms of customary law to two wives which are all South African citizens;

17.3. He is self-employed and conducts a salon business, trades in used motor vehicles by informally buying, fixing and selling them;

17.4. He earns an amount of over R65 000,00 monthly from all his businesses;

17.5. He is the owner of two houses all situated at Khutsong. In addition to that he is the owner of a vacant land at Potchefstroom;

17.6. He has four motor vehicles, namely a Volkswagen, Amarok, Audi A3 and Volkswagen Tarok;

17.7. He has bank savings in excess of R1 million and these are the amounts that he obtained in Gold Rush Betting wins;

17.8. He has a previous conviction of theft which is more than 15 years;

17.9. That the investigating officer is in possession of his passport and identity document;

17.10. He will suffer irreparable harm if not released on bail and his business will "collapse" and that the respondent (at that stage, the appellant) will not suffer any prejudice if released on bail, and

17.11. That the state does not have a strong case against him."

18. In opposition of bail, the state led the oral evidence of Mothusi Goodhope Letsogo from the Department of Home Affairs. He received a request to verify the identity document of the respondent for its authenticity. He went to the archives and obtained a Dl24 form which is the birth registration form of the respondent and the registered name of his mother was Thandi Patricia Ngobeni with identification number 6[…]. Ms Ngobeni was traced and found at Bushbuckridge

and denied knowing the respondent. Ms Ngobeni has a son called Bethuel Ndelo Ngobeni born on 02 August 1985, who also deposed to an affidavit averring that he does not know the respondent and further that the respondent is not his brother. Then he came to the conclusion that the respondent obtained his identification document fraudulently. The other children of Ms Ngobeni are Mashego Beauty Providence and Mashego Mathlatsi Vincent. Their surnames are different from that of Ms Ngobeni, because she was subsequently

married. He received a letter from the Department of Home Affairs of its intention to cancel his identity document and was allowed to make representation on why such identity document should not be cancelled but requested extension of time. There is no passport appearing under the identification number of the respondent. The identification of the respondent and that of the child of Ms Ngobeni, Bethuel Ngobeni are not the same.

19. The state also led oral evidence of Kgomotso Galetlole, the investigating Officer in the matter. An application was done to intercept communication of the people they were suspected of committing crimes in the operation they conducted. The respondent's phone calls and that of his co-accused were intercepted after the application to intercept was granted. They also received information that the respondent and.accused 2 in the matter are brothers and that they are from Zimbabwe, in Chipinda. The respondent in the intercepted calls is referred to as Zingaiyi. Section 252A trap was also applied for, and agents were tasked to infiltrate the alleged syndicate and establish their modus operandi, they then also established that they are dealing with unlawful raw material. The agents met with the customers at the respondent's place of residence. The section 252A trap was in place from 2018 to 2022. The respondent's names are Zingaiyi Diliwayo.

20. The respondent bought all his vehicles for cash and more than four vehicles are registered in his names. All his houses were purchased for cash and registered in his wives' names. Also, that the respondent has a wife in Zimbabwe and some of the vehicles he purchased were transported to Zimbabwe.

21. In denying the respondent bail, the presiding Magistrate made the following findings;

"I am satisfied that the accused is part of a criminal syndicate that is well­run operation. They have cash and are willing to corrupt state officials they want and persuaded that illegal mining activities involve violence in the fight for territorial domination. I am satisfied that these activities had a negative effect on the economy of the country. On a balance of probabilities, this court does not find that the accused persons have successfully discharged the onus contemplated in section 60(11)(1)(b) of Act 51 of 1977. They have failed to show that there are factors which, in the interests of justice permit their release on bail.

I am satisfied that there is a strong case which on its own, is a good incentive to make or cause the accused to be a flight risk." (sic)

22. Aggrieved by such decision to refuse them bail, the respondent appealed such decision in terms of section 65(1)(a) to this court, which appeal was refused on the 18 May 2023, after the presiding Judge saw no misdirection on the part of the presiding Magistrate.

23. On the 23 September 2023, the respondent brought a bail application on new facts. In his affidavit used support of bail on new facts stated that;

23.1. That since his arrest and despite being in custody for a period of over a year, he has not been supplied with a case docket and there have been numerous postponements in the matter for no various reasons, and the state has been placed on notice in terms of section 342A of Act 51 of 1977;

23.2. On the 14 December 2022, the investigating officer indicated that investigation will be complete in the matter in a period of a month or two, meaning that investigations should have been completed on the 14 February 2023. A period of 8 months has since lapsed, but investigations are not yet completed;

23.3. His health has deteriorated since his incarceration, and he is currently suffering from fits and hypertension;

23.4. His incarceration has also negatively affected his family, in particular his children. They are being threatened to be expelled from school due to non-payment of school fees;

23.5. Monies have been transferred from his account with an investment of approximately R400 000,00 without his permission, which his wife has access to. The money is transferred to the account unknown to him. He blames the state for such transfers, as since his phones were seized by the police, they have been in the state's custody;

23.6. His 4-year-old child is extremely ill and before his incarceration, he was together with his wife taking the child to traditional healers to cure the child's illness. Upon medical assessment the child is diagnosed with Down's Syndrome medical condition;

23.7. Social Worker's report indicates that the whole family has been affected by his arrest. They all present with severe symptoms of stress and depressive mood. His second wife is on chronic medication, antidepressants, caused by stress related to financial stress and parenting of the child with special needs;

23.8. Medical bills, municipal rates and taxes remained unpaid and have accumulated arrears;

23.9. His citizenship has not been revoked since the Department of Home Affairs has issued the notice of intention to cancel and that shows that he is South African citizen. The immigration officer approached a wrong person who is alleged to be his mother.

24. The state in opposing bail on new facts of the respondent, presented in evidence the affidavit of the Investigating Officer which stated that;

24.1. He testified that the investigation will be finalised in two months period but that was an estimation. Due to factors beyond his control which includes but not limited to the fact that state facilities are over­ burdened and the turnover rate for results is delayed and also the aspect of load shedding which is affecting the whole country. The delay was also occasioned by the arrest of the life partners of the respondents and his co-accused.

24.2. Denies that a wrong person was interviewed by the Department of Home Affairs who is not the mother of the respondent. Despite requesting the details of the correct mother of the respondent for verification with the Department of Home Affairs such has not been received from the respondent.

24.3. DNA report indicates that respondent and accused 2 in the trial matter, are full siblings.

24.4. Passport photo page of accused 2 was found on the seized phone of the respondent on analysis,

24.5. Department of Home Affairs is in the process of cancelling the identity documents of the respondent;

24.6. Financial investigations of the respondent are supposed to be conducted and financial statements from financial institutions and private persons had to be obtained and there was no unreasonable delay based on the complexity of the case; and

24.7. In one of the court appearances photos of the prosecutor and the Investigating Officer were "discretely" taken despite the court room being full, and they have since received stalking phone calls which resulted in case docket being registered.

25. Attached to the opposing affidavit was amongst others, the affidavit by N Ditlogolo from the Potchefstroom Correctional Services, Remand detention facility stating that the centre has a primary health care clinic on site. Inmates diagnosed with chronic medical conditions are treated at the clinic by professional nurses and visiting medical practitioner. Inmates receive their medication daily and follow ups to check their vital signs and their response to medication is also done. Complicated cases that cannot be managed at primary health care level are referred to public hospital, Potchefstroom Hospital.

26. In permitting the respondent to bail, the presiding Magistrate made the following conclusions;

"As it stands, as this court, I can only accept that they have documents that are showing them to be South African citizens. Section 28 of the Constitution which says that the interests of a child, were the interests of the children is, tramped then the court must the court must look at the interest of the child.

I am satisfied that accused number 1 was able to show that there are new factors that have been both from the family perspective as well as from the fact that there has been a delay in incarceration and that he be admitted to bail." (sic)

27. Bail was set with necessary conditions, that he must not communicate with any witness or potential witness of the matter. That he must report to Carletonville Police Station every Monday and Sunday and restricted to the Magisterial district of Merafong Carletonville and may not leave without the prior written approval of the Investigating Officer. That he must surrender his passport to the Investigating Officer, and he is prohibited from applying for another passport for purposes of traveling outside the boarders of the Republic.

ANALYSIS

28. The applicable schedule under which this bail appeal is to be determined remains schedule 5. The provisions of section 60(11)(b) of Act 51 of 1977 then became applicable, which permits the release on bail if the bail applicant adduces evidence which satisfies court that the interest of justice permits his or her release. At the initial bail hearing, it was found that the respondent did not satisfy the requirements and bail was refused. The presiding Magistrate found the exitance of new facts or circumstances on the respondent when dealing with bail on new facts and permitted the respondent on bail.

29. Section 65(4) of Act 51 of 1977, gives a court powers on appeal and such are circumscribed and the following provision is made;

"[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."

30. It is trite that where the court a quo, in this instance the court that permitted respondent to bail, misdirected itself materially on the fact or legal principles, the court of appeal may consider the issue of bail afresh. The functions and powers of the court or judge hearing appeal under section 65 of Act 51 of 1977 are similar to those in an appeal against conviction and sentence. In S v Barber 1979 (4) SA 218 (D) at 220 E-H, Hefer J stated that;

"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."

31. In S v Vermaas 1996 (1) SACR 528 (T), Van Dijkhorst J when dealing with bail on new facts stated that;

"Obviously an accused cannot be allowed to repeat the same application for bail based on the same facts week after week. It would be an abuse of the proceedings. Should there be nothing new to be said the application should not be repeated and the court will not entertain it. But it is a non sequitur to argue on that basis that where there is some new matter the whole application is not open for reconsideration but only the new facts. I frankly cannot see how this can be done. Once the application is entertained the court should consider all facts before it, new and old and on the totality come to a conclusion. It follows that I will not myopically concentrate on the new facts alleged."

32. In S v Nwabunwanne 2017 (2) SACR 124 (NCK) at para 24, the following was stated;

"[24] New facts can and should be put before a magistrate by adducing oral evidence or submitting a document stating facts which are common cause. The purpose of adducing new facts is not to address problems encountered in the previous application, but should be facts discovered after the bail application. The facts relied on by the appellant in this instance were discovered after the initial application."

33. At the initial bail application of the respondent, the health condition of his minor child who is 4 years old suffering from Down Syndrome was not a subject for determination. The respondent raised this aspect for the first time at his bail hearing on new facts and indicated that the child is extremely ill. The second wife of the respondent indicated that the condition the child is suffering from, the child was diagnosed with it before the arrest of the respondent, an aspect which was confirmed by the respondent himself.

34. The child was before the incarceration of the respondent cured for by the traditional healer and raised the point that his medical aid is no longer in use because of the money he owes to the medical aid scheme. It is not known why this aspect was not raised at the initial bail hearing. The presiding Magistrate deemed this aspect as constituting new fact or circumstances and used it as one of the reasons to permit the respondent to bail.

35. In Sibuyi v S (A115/2020) ZAGPPHC 217 (4 June 2020) at para 26, when dealing with the bail applicant's failure to raise an aspect known at initial bail hearing and raises as new evidence, in the second bail hearing on new facts, Mosopa J stated;

"[26] Appellant in his bail application on new facts, in my view, did not provide any new facts since the first bail application. What appellant did was to explain what happened at the time of his arrest. He had at the occasion of the first bail application all this information at his disposal and failed to relay it to court. It is therefore my considered view that such facts are not new and secondly not relevant for the determination of bail on new facts."

36. I would agree with the presiding Magistrate that the respondent's health since his incarceration deteriorating is a new fact, but the presiding Magistrate ignored evidence before him when determining this aspect. Evidence from the Correctional Centre where the respondent was kept, is that there is a primary health care facility at the centre (Clinic) wherein all accused who are kept in custody awaiting finalisation of their trial matters are referred to in cases of various ailments, there is a permanent professional nurse on site and also visiting medical practitioners. Inmates are given medication on daily basis and there is a constant check on their vital signs. In cases of complex chronic conditions, inmates are referred to public

hospital, Potchefstroom Hospital.

37. The respondent did not present evidence that since he was diagnosed with the conditions he is suffering from, he was not referred to the clinic for treatment or that he was given wrong medication which worsened his medical condition. He did not say that the medication he was receiving at prison was inadequate for his condition.

38. Respondent's status in the country was viewed as new evidence, since over a period of a year that the Department of Home Affairs had issued notice of intention to cancel the identity document of the respondent has failed to do so, the respondent is a South African citizen. Again, in this instance the presiding Magistrate elected to ignore evidence before him. It was said that the respondent fraudulently obtained his identity document and there is no passport linked to that identity document number. No new evidence was presented to gainsay that.

39. What served on bail on new facts was that a person who was interviewed was not the mother of the respondent, but she was a wrong person an aspect which was not raised at the initial bail hearing. Nothing indicates that the respondent's mother is deceased or is not traceable. Despite state requesting the respondent to provide them with particulars of the real mother of the respondent, he failed to do that and blaming the Department for not finalising the cancellation process of the respondent's identity document; in my considered view lacks merit. The respondent at the initial stage of the process, where he was issued with the notice of intention to cancel, he requested extension of time without indicating the amount of time needed. Also, the evidence of the Immigration Officer that he was instructed to put hold on the cancellation process pending the outcome of the respondent's criminal matter.

40. The state at the bail hearing on new facts indicated that the Department is in a process of finalisation of the cancellation of the Respondent's identity document and has finalised such process in respect of one of the respondent's co-accused.

41. It also emerged in the bail hearing on new facts, after it was alleged in the initial bail hearing that respondent is a blood brother of accused 2, that DNA report shows that they are blood brothers. Investigations also revealed that accused 2 like the respondent is also using a fraudulent identity document. At the time of his arrest, he indicated to the police that he is James and several people that the police interviewed confirmed that he is James. He is a Zimbabwean national, the police source confirmed that both the respondents and accused 2 are from Chipini in Zimbabwe and also the respondent has a wife in Zimbabwe. The presiding Magistrate misdirected himself in not considering evidence which served before him, to declare the respondent a South African citizen.

42. Nothing new was brought challenging the strength of the state's case against the respondent as such, the findings made by the court in the initial bail hearing stand.

43. In terms of section 35(3), it enshrines every accused's right to a fair trial, which includes the right to have his trial begin and concluded without unreasonable delay (section 35 (d)). In the initial bail hearing the Investigating Officer promised to finalise his investigation in a month or two. Sight should not be lost of the fact that permission to intercept the respondent's phone and section 252A trap applications were done long before the respondent was arrested.

44. At the time of hearing of bail on new facts which was approximately 8 months after the initial bail application, the investigations have not been finalised by the Investigating Officer. According to the Investigating Officer, the two months to finalisation of his investigations that he provided was an estimation. He provided reasons that can be attributed to the delays that were inherent in the state's case.

45. The respondent disputed the fact that he is a blood brother of the accused as alleged by the state. For the appellant to confirm that, it was only going to be through DNA analysis. I cannot ignore the fact that DNA analysis process in this country is a great challenge. There are serious backlogs in the country which threatens to collapse the criminal justice system. The issue of loadshedding which has impacted the country can also not be ignored.

46. Section 35(3)(d) does not confer upon the respondent absolute right, but such right is a subject of limitation under section 36 of the Constitution, to the extent the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

47. All issues that delayed the matter has been finalised at the time of bail on new facts, safe for cancellation of the identity document of the respondent and that the matter is currently transferred to the jurisdiction of the High Court. This aspect in my considered view even if viewed by the presiding Magistrate is a new factor, it lacked relevance for the determination of the bail application on new facts.

48. It was strongly contended that since the respondent has been released on bail on the 27 October 2023, the respondent has been in complainant with stringent conditions set for his release on bail and he has not defaulted. There was no application brought by the state under section 66 or 67 of Act 51 of 1977, by virtue of respondent's failure to observe his bail condition or failed to appear at court at the place, date and time appointed for his trial.

49. The state delayed for a period of 3 days to timeously bring an appeal against the granting of bail but the appeal matter could not be heard immediately for reasons already indicated elsewhere in this judgment. This court is also mindful of the fact that the appellant is not appealing against the conduct of the appellant after being released on bail, but the irregularities committed by the presiding Magistrate when he released the respondent on bail.

50. It is my considered view that the presiding Magistrate misdirected himself when releasing the respondent on bail and ignored evidence before him. All the properties the respondent is alleging to be belonging to him, are all registered under his life partners names, vehicles are registered under their names and all the properties are purchased for cash. I also fail to see why respondent's bank account which one of the life partners has access to, can be said after he found that there are funds missing, that the state is implicit in the theft of such funds by the mere fact that the state seized his cellphone and it has since been in the state's custody.

ORDER

In the result, the following order is made;

1. Appeal against granting of the respondent bail is upheld.

2. The respondent is ordered to immediately surrender himself for detention to the Investigating Officer at Khutsong and/or Carletonville Police Station.

3. The respondent is to be kept at the Potchefstroom Correctional Centre until his trial matter is finalised.

M.J. MOSOPA

JUDGE OF THE HIGH COURT,

PRETORIA

APPEARANCES:

FOR THE APPELLANT : ADV SEKHONYANA & ADV MAPHALALA

INSTRUCTED BY : THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE RESPONDENT : ADV OSBORNE

INSTRUCTED BY : MASHE E ATTORNEYS INC

Date of hearing : 16 October 2024

Date of judgment : 29 November 2024