Rune v S (A165/2020) [2021] ZAFSHC 117 (29 April 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: A165/2020

In the matter between:

GENERAL

RONNIE RUNE

Appellant

and

THE

STATE

Respondent

CORAM: MHLAMBI J, et PARKS AJ, et BOONZAIER, AJ

HEARD ON:

19 APRIL 2021

DELIVERED ON:

29 APRIL 2021

MHLAMBI, J

[1] This is an appeal, with leave of the Court a quo, to the full court against the dismissal of the appellant’s bail application which was handed down on 27 November 2020. The grounds of appeal are based on three pillars as set out in the notice of motion and are stated as follows:

“That the Honourable court erred in:

1. Not finding that exceptional circumstances exist which in the interest of justice permit the release of the appellant on bail;

2. Failing to find that the cumulative impact of the undermentioned factors constitutes exceptional circumstances;

(a) The health of the appellant;

(b) The period already spent in custody;

(c) Financial loss suffered by the appellant as a result of his detention;

(d) Delay in finalisation of prosecution;

(e) The unfair treatment of the appellant by the respondent and malicious prosecution on some counts;

(f) The witness of the state’s case;

(g) The fact that Masabata already testified and the grounds upon which the bail was opposed fell away;

(h) The applicant is not a flight risk;

(i) Permanent stay of prosecution on some counts;

(j) Given the history of the matter, it is likely that further delays in finalisation of the trial may ensure;

(k) The impact of the Covid-19 pandemic might have on the appellant in prison and the availability of witnesses from Lesotho.

3. The court failed to weigh the interests of justice against the right of the appellant’s personal freedom, in particular, the prejudice he is likely to suffer as a result of continued detention.”

[2] The application is opposed.

[3] At the inception of the bail hearing of 23 November 2020, which gave rise to the order granted on 27 November 2020, the bail application was based on new facts which were couched as follows:

3.1 That the trial court made an order that the prosecution in relation to counts 25 to 39 were permanently stayed;

3.2 A further application for the permanent stay of prosecution of additional charges was brought on 11 November 2020;

3.3 The conduct of the state in delaying the matter and negating the applicant’s fair trial rights;

3.4 The applicant was the only person who could renew its diamond licence which had expired on September 2020 and the tax returns of his various businesses were due and needed attending to.

[4] The grounds of appeal contained in the notice of motion were as a result of both oral and written submissions[1] that all the factors presented during bail applications should be considered as postulated in various authorities. The real issue appears from the oral submissions of the appellant’s counsel that the reasons advanced by the court a quo, as evidenced in paragraph 25 of its judgment of 27 November 2020.[2] The appellant’s counsel, however, conceded that the approach followed by the court a quo in the adjudication of the bail application was correct.

[5] The appellant face 39 charges which ranged from rape, corruption, attempted extortion, and trafficking in persons. Counts 6 to 32 relate to human trafficking and counts 1, 5, 33 to 36 and 38 relate to rape. Ten of the counts relating to human trafficking, 25 to 32, and 2 counts of rape, 37 and 39, were granted a permanent stay of prosecution by the trial court on 2 November 2020. The reasons for this ruling and the outcome of the application of 11 November 2020 have, as yet, not being provided by the trial judge.

[6] The appellant lodged an initial bail application on 19 February 2019 in the Regional Court, Welkom. His bail was refused and he appealed that decision. The appeal was dismissed on 29 March 2019. The appellant`s petition to the Supreme Court of Appeal was dismissed on 9 July 2019. The appellant subsequently brought two unsuccessful applications for bail on new facts on 2 May 2019 and 23 May 2019, respectively.

[7] The trial of the appellant commenced on 5 March 2020, continued intermittently and is still continuing with a possible 23 witnesses still to testify. In the bail hearing of 9 to 12 October 2020, the applicant raised as exceptional circumstances in his favour, the following new and pre-existing grounds:

6.1 The commencement of the trial and the weakness of the state's case;

6.2 The impact of the Corona virus and issues incidental thereto;

6.3 His personal profile and general requirements in relation to the bail applications.[3]

[8] In coming to its conclusions in the consideration of the two bail applications based on new facts, the court a quo relied on the decisions of S v Mpofana 1998(1) SACR 40 and S v Mququ 2019 (2) SACR 207. I cannot find fault with the approach of the court as the law requires that where it is found that new facts do exist, the bail application should be reconsidered on all the facts before it, both old and new to come to a conclusion.[4]

[9] The appellant’s heads of argument consisted of 49 pages. The essence of the submissions is:

6.1 the granting of the permanent stay of execution by the trial court introduced a new fact and all the factors presented during the bail applications should be considered;

6.2 There is no reasonable prospect of a successful prosecution on the remaining counts that the appellant faced;

6.3 The prosecution was malicious on some of the charges and that the charges previously withdrawn were added in an attempt to strengthen the respondent’s case in the bail application;

[10] The state submitted that new facts must be sufficiently different in character from the facts presented in earlier unsuccessful bail applications and must not constitute simply a reshuffling of old evidence.[5] The appellant failed to show that the court a quo erred and that the appeal was treated as a new bail application. No contradictions or discrepancies in Masabata Khoete’s evidence could be shown despite her being subjected to a rigorous cross-examination. Her version was unchanged. The state’s case against the appellant remained strong. There was ample evidence that before and during the trial, the appellant influenced the witnesses. This was also shown in the bail applications and the findings of the court in the two unsuccessful bail appeals.

[11] The grounds of appeal were thoroughly considered by the court a quo in its judgment of 16 October 2020. It is apt to quote the following passages:

“[22] In this matter, the record of proceeding reflects that all the witnesses that had thus far testified incriminated the accused as alleged by the state from the onset. It follows that the submissions made in regards the quality of the witnesses` evidence does not result in a conclusion that the state`s case is weakened and therefor does not constitute new facts.

[23] Pointing to the addition of further charges does not help the applicants plight. It does have as an inevitable consequence that more witnesses will have to testify which may prolong the trial. Simultaneously though it drastically increased the severity of the possible sentence the accused might receive if convicted. This is invariably an incentive to abscond. Having shown a tendency to want to influence witnesses, the additional witnesses increases the risk of interference with witnesses.

[23] The Corona virus pandemic has impacted on all spheres of society. It certainly had an impact on the accessibility of courts for witnesses and that of legal representatives to their incarcerated clients. The concerns raised, including, that the witness from Lesotho may not be able to attend court which will prolong the trial, is no longer valid because the country`s boarders has been opened and there is greater access to correctional facilities.

[24] When scrutinizing the applicant’s personal circumstances, it is evident that nothing new has come to light. The Court in both the preceding applications considered the health of the applicant and the effect of incarceration on his business[6]. These aspects are merely a reshuffling of previously stated facts and cannot be considered new facts.

[25] In consequence I find that the applicant has failed to put new facts for consideration before this Court and the application can therefore not succeed.”

“[26] The strength or weakness of the state case is relevant in determining where the interests of justice lie in the context of s 60(11)(a) or (b) of the CPA. It would also be relevant in a bail application other than one in terms of s 60(11) (a) or (b), where the prosecution is required to show that the interests of justice do not permit the release on bail.”

[12] The appellant filed bail applications on 19 February 2019, 02 May 2019, 23 May 2019, 9 to 12 October 2020 and 23 November 2020. The two last bail applications served before the court a quo. The court stated that the granting of the permanent stay of prosecution constituted a new fact which necessitated that it revisits all the evidence before it. The court was of the view that the submissions made in regard to the diamond dealer certificate and tax returns did not constitute new facts as these were everyday occurrences in the running of a business which were obviously encapsulated in the consideration of the impact of incarceration on the business.[7]

[13] Similarly, the submission that the state deliberately delayed the finalisation of the trial by not providing further particulars and seized documents, could not stand as these issues were not raised at the trial, creating the impression that the appellant was ready for trial. The applicant, having been placed in possession of the indictment prior to the commencing of the trial, should have known what he would require to mount his defence. Instead, he chose to bring piecemeal applications mid-trial which invariably caused delays in the trial. [8]

[14] In paragraphs 23, 24, and 25 of the same judgment, the following was stated:

“[24] Prosecution on counts 32 and 39 relating to Ester Leoma have been stayed after the witness testified. Previously, the state argued that her evidence of an incident ten years later established a modus operandi by the applicant and strengthened the state’s case on the later incident of Masabatha on counts 1, 2, and 3. This is no longer the case but I am of the view that it does not disturb the prima facie case established in relation to Masabatha. It is also significant that none of the applications for stay of prosecution relates to Masabatha. This leaves one with the impression that those charges stand on firm ground.

[24] The initial bail application revolved around the charges relating to Masabatha. Those charges have remained undisturbed by the applications for permanent stay of prosecution. The initial bail court and subsequent courts found the applicant to be inclined to want to influence witness. Thus whilst there are witnesses, one of whom is his daughter, that still have to testify, the danger of interference remains.

[25] Although the stay of prosecution is a new fact when considering all the evidence before me, it does not bring about the desired effect of tilting the scale in favour of establishing the exceptional circumstances required for the interest of justice to permit his admission to bail. Consequently, the application could not succeed.”

[25] It is indeed so that the appellant must discharge his onus on a balance of probabilities. I am not convinced that he has succeeded so. I am equally not persuaded that the court a quo was wrong[9] in its conclusion and that it failed to particularise its reasons for the conclusion it reached. I find that the new facts are not sufficiently different in character from the facts presented during the earlier unsuccessful bail applications and are, but a reshuffling of the old evidence[10]. It cannot be said at this stage of the ongoing criminal trial, that the state’s case is weak.[11] Consequently, I hold the view that the court a quo did not misdirect itself as alleged. The appeal must therefore fail. In the result I make the following order

[26] Order

The appeal is dismissed.

___

JJ MHLAMBI, J

I concur

____

PARKS, AJ

BOONZAIER, AJ

Counsel for Appellant: Adv. RJ Nkhahle

Instructed by:

Kambi Attorney

Office 307-308, Third Floor

154 Charlotte Maxeke Street

Sunday School Building

Bloemfontein

Counsel for Respondent: Adv. A Simpson

Instructed by:

Director Of Public Prosecutions

Cnr Fountein & Aliwal Streets

Waterfall Building

[1] Para 1.5 of the Applicant’s Heads of Argument.

[2] Paragraph 25 reads as follows: “Although the stay of prosecution is a new fact, when considering all the evidence before me, it does not bring about the desired effect of tilting the scale in favor or establishing the exceptional circumstances required for the interest of justice to permit his admission to bail. Consequently, the application cannot succeed.”

[2] Paragraph 25 reads as follows:

“Although the stay of prosecution is a new fact, when considering all the evidence before me, it does not bring about the desired effect of tilting the scale in favor or establishing the exceptional circumstances required for the interest of justice to permit his admission to bail. Consequently, the application cannot succeed.”

[3] Paragraph 6 of the judgment of 16 October 2020.

[4] S vv Vermaas !996(1) SACR 528 (T) at 531.

[5] Para 16 Heads.

[6] Bail application p307 line 8-14

[7] Paragraph 17 of the judgment of 27 November 2020.

[8] Paragraph 21 of the judgment

[9] State vs Ali 2011 (1) SACR (E) para 14.

[10] State vs Petersen 2008 (2) SACR 355 (C) at 371 E-F

[11] Siyabonga Mooi vs State (162/12) [2012] ZASCA 79 (30 May 2013)