Maritz v S (A131/2021) [2021] ZAFSHC 284 (10 November 2021)

IN THE HIGH COURT OF

SOUTH AFRICA

FREE STATE DIVISION

BLOEMFONTEIN

Appeal case number: A131/2021

Criminal case number: 66/2019

In the appeal between:

JAN GYSBERT MARITZ

Appellant

and

THE

STATE Respondent

IN RE:

THE STATE

versus

JAN GYSBERT

MARITZ Accused

CORAM: VAN ZYL, J, MATHEBULA, J et LOUBSER, J

JUDGMENT BY: VAN ZYL, J

HEARD ON: 5 NOVEMBER 2021

DELIVERED ON: 5 NOVEMBER 2021; 10 NOVEMBER 2021

[1] This is a bail appeal which served before us on Friday, 5 November 2021, against the order of Naidoo, J, dated 15 September 2021, in terms whereof the bail of the appellant was withdrawn.

[2] After the hearing of the oral arguments presented during the appeal, considering the inherent urgent nature of bail appeal proceedings and the outcome of the appeal, we deemed it apposite and in the interest of justice to forthwith make the order and to provide the reasons for the said order in due course.

[3] We made the following order:

“1. The appeal succeeds.

2. The order of Naidoo, J, dated 15 September 2021, is set aside.

3. The bail of the appellant is reinstated on the same terms and conditions that prevailed on 21 May 2021.

4. The reasons for the order will follow in due course.”

[4] I consequently herewith provide the reasons for the aforesaid order.

Background:

[5] After the appellant’s initial arrest on 25 March 2019, a formal bail application was lodged in terms of section 60(11)(a), read with Schedule 6 of the Criminal Procedure Act, 51 of 1977 (“the Act”). On 27 March 2019 the Welkom Magistrate’s Court granted bail in the amount of R10 000.00 combined with certain conditions.

[6] The appellant was eventually arraigned in the High Court on 18 counts, consisting of multiple counts of rape, indecent assault, sexual assault, sexual grooming, sexual exploitation of children, exposure of pornography to children, production of child pornography and assault.

[7] The appellant initially pleaded not guilty on all 18 counts. The State commenced with the presentation of evidence, but on 21 May 2021 the appellant made admissions in terms of section 220 of the Act, which had the legal consequence that the appellant in fact changed his plea from not guilty to one of guilty on the first 16 counts. Based on his section 220-admissions, the court a quo found the appellant guilty on counts 1 to 16 as set out in the indictment. The State stopped prosecution on counts 17 and 18 in terms of section 6 of the Act and the appellant was consequently acquitted on the last mentioned two counts.

[8] It is common cause that the appellant remained on bail until 21 May 2021 and that he complied with all the conditions of his bail. However, due to his conviction on the said date, his bail lapsed by operation of law. Sentencing proceedings did not commence subsequent to his conviction. Instead, the defence and the State agreed that the court be requested to postpone the sentencing proceedings in order to obtain certain reports relevant to sentencing. The defence and the State further agreed that the court be requested to extend the appellant’s bail, with certain amendments to the conditions thereof. After the court a quo entertained the aforesaid application pertaining to the extension of the appellant’s bail, it, inter alia, made the following findings and order:

“… I would not normally have allowed this in this case, save that I am aware that the accused is involved in a very extensive practice. It involves millions of rands of public monies, or monies of clients and that is a concern for me that the closure and the hand-over of that practice must be done as seamlessly as possible, without affecting the interests of his various clients and that is the one exceptional circumstance that prevails in this matter, otherwise I would not have hesitated to ensure that the accused goes straight to custody now.

So, on that basis I have decided to extend the bail pending the imposition of sentence, however, there are conditions attached and this is my order:

1. The bail of the accused is extended and increased to R50 000.00.

2. The accused may not communicate with any of the State witnesses in any manner whatsoever, save for his wife, Izette Huijink-Maritz via her legal representatives for the purposes of compiling any expert or other report that the accused intends to use as evidence in mitigation of sentence and for the purposes of finalising the divorce action between the accused and his wife.

3. The accused shall not apply for a passport or any other travel document pending sentence.

4. The accused shall not leave or travel outside the Republic of South Africa.

5. The accused shall not leave the Magisterial District of Welkom, except with the written permission of the investigating officer where such travel is to other parts of the Free State Province for the purposes of finalising the closure of his practice.

6. Such written permission of the investigating officer must be sought no less than 24 hours prior to the date and time of such travel.

7. The closure and handing-over of the accused’s legal practice in the firm Bokwa Attorneys in Welkom shall be conducted under the strict and constant supervision of Mr Ronnie Bokwa.” (Own emphasis)

[9] The sentencing proceedings were subsequently remanded to 14 September 2021.

[10] On 4 June 2021 the appellant was required by the State, on notice given to him, to appear in the High Court for purposes of an issue with his bail condition regarding his contact with his wife. Again, by agreement between the State and the defence they requested the then presiding judge, Daniso, J to merely amend the relevant condition and to extend the appellant`s bail. Daniso, J extended the appellant’s bail until 14 September 2021 and amended the second condition of the appellant’s bail to read as follows:

“2. The accused may not communicate with any of the State witnesses in any manner whatsoever, save for his wife, Izette Huijink-Maritz, via her legal representatives for the following purpose:

2.1 to arrange his visits regarding the younger daughter, Isabella; and

2.2 for financial arrangements regarding Izette and the children; and

2.3 finalising the divorce action.”

[11] On 14 September 2021, when the sentencing proceedings were supposed to commence, the appellant’s legal team at the time, withdrew. The appellant’s present legal team then came on record. Mr Joubert, who also appeared in the hearing of the bail appeal, at that stage requested a postponement of the proceedings since he and his instructing attorney received instructions from the appellant at a late stage and they were therefore not yet fully prepared to continue with the matter. The State did not oppose the application for a postponement and the court a quo was equally willing to grant the postponement in the prevailing circumstances. Mr Joubert then requested that the appellant’s bail again be extended on the same conditions to the said date of postponement. The court a quo at that stage expressed the view that it has a problem to further extend the appellant`s bail and entertained argument by both the defence and the State on the issue. Ms Bester, who also appeared on behalf of the State in the bail appeal, indicated to the court a quo that the appellant has not breached any of his bail conditions and that the State had no objection to the appellant’s bail being extended, but left it in the discretion of the court a quo. After the court a quo heard argument, it indicated that it would make a ruling the following day, for purposes of which the matter was remanded to 15 September 2021 and the appellant’s bail was extended to 15 September 2021.

[12] On 15 September 2021 the court a quo in its ruling, inter alia, stated as follows:

“With regard to the extension of bail Mr Joubert suggested that the court again exercise its discretion and further extend the accused’s bail. The State submitted that bail in this matter is in the court’s domain and discretion, and that the State has no submissions to make in this regard.

The court then requested Mr Bokwa to address the court with regard to the handover of the practice and/or files by the accused to Mr Bokwa.

…

The court was advised that the accused’s new legal team had furnished Mr Bokwa with a list of files for handover to him, together with a report in respect of the files. He indicated that save for matters pending in the High Court, Supreme Court of Appeal, as well as in the Northern Cape, he knows which files are for handover to him. He has to take physical transfer of the files and could not answer why this was not done; however, the impression I gained is that Mr Bokwa is currently in a position to identify and take over the relevant files.

… On 21 May 2021…the court’s sole reason for extension of his bail was therefore to enable him under the strict supervision of Mr Bokwa to handover the practice and files to Mr Bokwa. As I indicated earlier, Mr Bokwa confirmed that he had received the list of files together with a report in respect of those files from the accused’s new legal team.

On the other hand, the sole reason for the court previously extending the accused’s bail and which was a condition of his bail, has been complied with, and the purpose for the extension as envisaged by the court has been achieved. Therefore the position of law that upon conviction the accused’s bail is revoked and the accused is remanded in custody now takes effect.”

[13] The court a quo consequently remanded the matter to 29 November 2021 up to 3 December 2021 and furthermore, inter alia, ordered as follows:

“The accused’s bail is by operation of law revoked and the accused is remanded in custody.”

[14] The appellant, on even date, subsequently applied for leave to appeal against the court a quo’s ruling to revoke his bail. Leave to appeal was refused. The appellant subsequently petitioned the Supreme Court of Appeal, whereupon the Supreme Court of Appeal on 13 October 2021 granted such leave to appeal to the Full Court of this Division.

Legal position:

[15] In terms of section 58 of the Act, the effect of bail is stated to be the following:

“58. Effect of bail

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.” (Own emphasis)

[16] Mr Joubert contended that once bail is extended after conviction, like in this case, the presiding officer is functus officio for purposes of bail until the bail lapses after the passing of sentence. He consequently submitted that the court a quo’s unilateral withdrawal of the appellant’s bail on 15 September 2021 was a material misdirection in law and that the said decision, therefore, constituted an irregularity. Ms Bester contended that the court a quo applied section 60(11)(a) or (b) of the Act, as determined in section 58, when it initially decided to extend the appellant’s bail after conviction. The court a quo thereupon extended the bail of the appellant on the ground that there was an exceptional circumstance, namely the necessity of the closure and handing over of the accused’s legal practice. Ms Bester submitted that because it was evident on 14 September 2021 that the said exceptional circumstance no longer existed, the court a quo had the discretion to revoke the appellant’s bail.

[17] It is common cause that bail is to be determined and dealt with in terms of the provisions of the Act. From the aforesaid section 58 it is evident that the lapse or withdrawal of the appellant’s bail on 21 May 2021 when the appellant was convicted, indeed followed by operation of law. However, as specifically provided for in section 58 “sentence was [is] not imposed forthwith after verdict” on the said date as there was an application to postpone and to extend the appellant’s bail. The court a quo indeed ordered that the appellant’s bail be extended, as provided for in section 58. In my view it is evident from the relevant part of section 58 that in the aforesaid circumstances “…the release shall…endure…until sentence is imposed.” I therefore agree with the contention by Mr Joubert that in terms of the said section, the legal effect of the Court Order which extended the appellant’s bail after conviction is that the appellant’s bail will be in force and effect until and after sentence has been passed. The court a quo’s order issued on 21 May 2021, also specifically provided that the extension was “pending the imposition of sentence”.

[18] The court a quo did not, in these circumstances, have the discretion or authority to have unilaterally revoked the appellant’s bail on 15 September 2021. No provision for the exercise of such a discretion is contained in section 58, nor in any other section of the Act.

[19] The decision by the court a quo to have revoked the appellant’s bail on 15 September 2021, was therefore clearly wrong and constituted a misdirection which had to be set aside and corrected.

[20] For the aforesaid reasons we upheld the appeal and made the relevant order, already referred to above, on 5 November 2021.

[21] However, at the time of making the order, we only referred to the conditions of bail that prevailed on 21 May 2021, without also referring to the amendment of the second condition which Daniso, J ordered on 4 June 2021, which I dealt with in paragraph [10] above. This occurred due to a bona fide oversight. Paragraph 3 of the order dated 5 November 2021 is therefore to be supplemented to read as follows:

“The bail of the appellant is reinstated on the same terms and conditions that prevailed on 21 May 2021, as amended on 4 June 2021.”

C. VAN ZYL, J

I concur:

M. A. MATHEBULA, J

P. J. LOUBSER, J

On behalf of appellant: Adv. D. J. Joubert SC

Instructed by:

Symington & De Kok Ing

BLOEMFONTEIN

On behalf of the State: Adv. A. Bester

Office of the Director: Public Prosecutions