S v Mabena (CC236/04) [2005] ZAGPHC 130 (23 September 2005)

JUDGMENT

BEGIN DEUR 'N "HEADER" TE MAAKSneller Verbatim/MS

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

PRETORIA

CASE NO: CC236/04

2005-09-23

In the matter between

THE

STATE

and

ABRAHAM MABENA Accused no 1

OUPA FRANS BOFU Accused no 2

________________

J

U D G M E N T

POSWA, J: Gentlemen, I have on my own in terms of a duty that falls on me as a judicial officer, or a judge, to see to it that justice is done to all, decided to raise the question of your bail application. You will be released on bail. In some case (whose reference I do not have), R v Hepworth, many, many years ago, it is an AD case, and long, long before any of us here came on earth, including me, some judges or judge decided that the court cannot sit bye and watch indifferently when people suffer, just because they are accused persons.

For the record, if it becomes necessary for me at any stage to give a full judgment on this matter, I shall set out in detail the authorities that I rely on in my conduct, in what I did today. I may also be in a position to rely on a judgment that I have just finished or just finishing on a similar issue which will probably enable me to say a little less here and just rely on it, but that is for the record. That will be in the case of S v Mapogo (the reference whereof I do not have now). I definitely have a judgment which is almost ready. It may be wrong, but it will set out what I wanted to say. So I am not going to give it here.

To go back to this, gentlemen, because of that obligation then, I got concerned about the fact that this case has been postponed, and postponed for no fault of the two of you. Significant dates in the lives of young people, Christmas in particular, New Year, just keep going by and you are in prison and these delays are not your fault. You are, on the other hand, presently standing as being convicted of the charges preferred against you. At a later stage I have to determine whether or not you were properly convicted. I have a sense that, in your case Mr Mabena, the conviction may well be sustained, if I remember well what your attorney has said from time to time - but this may be wrong. But nothing says that a person who has been convicted cannot be out on bail pending finalisation of his or her case.

I am not going to refer to details now. I just happen to have had a case that I have referred Ms Mahanjani to - she appears for the state - I have referred her to the case of S v Brucely Lutherman Naidoo, appeal number 39/03, which was to have been before me and another judge on Monday 19 September, 2005. I do not need that case for me to make the decision I have made. I could have gone on without it, but I am bringing it because I am trying to show that anyone who suggests that it is improper to consider granting bail in circumstances such as yours, is not handling the truth properly. Mr Naidoo, in the case I am referring to, was convicted of the murder of one passenger in a car and causing injuries to other occupants of the car with a firearm. He was found guilty of murder but, pending the sentence, was released on bail. After being released he returned and was sentenced to 15 years imprisonment. He then went on appeal and he was released on higher bail.

This country, just this year alone, is full of endless examples of highly placed human beings in this country who were involved in serious crimes, some of which were pending and, in respect of others, where they had already been sentenced, but who were released on bail. I do not have to mention any names, all of you know them. I am one of those judges who do not believe that there is law for the rich and law for the poor or anything based on racial complexion or racial belonging rather. I believe that the circumstances of this case have created, if I need to go via that route, have created exceptional circumstances - for your release in terms of section 60 (I think it is) (11)(b) or (a). (I cannot remember but the relevant section). In other words, the situation has changed so drastically that, what KRIEGLER, J was reluctant to define exceptional circumstances, have arisen here.

At the end of the day, I must satisfy myself about that and I have done so. It is now section 60(11)(a). I need only to mention this just in case the offices of the DPP may want to acquaint itself with what I am talking about. In S v Dlamini, S v Dladla and Others, S v Joubert, S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC), the judgment of the Constitutional Court, when there was a complaint about it being very difficult to define exceptional circumstances and saying, therefore, the Act was unconstitutional, KRIEGLER, J said the following - I want to quote this and I would like you to think about it because that is how I am applying this portion here:

"I am not persuaded that there is any validity in the complaint raised in argument, that the term exceptional circumstances is so vague that an applicant for bail does not know what it is that has to be established. An applicant is given broad scope to establish the requisite circumstances whether they relate to the nature of the crime, the personal circumstances of the applicant or anything else that is really cogent. The contention was moreover that, if one adds that those circumstances must 'in the interest of justice permit ... a release', the subsection becomes an insurmountable obstacle in the way of bail. In my view, the contrary is true, inasmuch as we are not dealing with the obstacle itself but with ways of bypassing it, the wider the avenue the more advantageous it is to freedom. A related objection that the requirement is constitutionally bad for vagueness falls to be rejected for basically the same reason. In any event, one can hardly expect the lawgiver to circumscribe that which is inherently incapable of delineation. If something can be imagined and outlined in advance it is probably because it is not exceptional."

Perhaps I should just go a bit further because I think many people overlook what the learned judge said here:

"Likewise, I do agree that because of the wide variety of ordinary circumstances enumerated in subsections (4) to (9), it is virtually impossible to imagine what would constitute exceptional circumstances and that the prospects of their existing are negligible. In requiring that the circumstances proved must be exceptional, the subsection does not say they must be circumstances above and beyond and generally different from those enumerated. Under a subsection for instance an accused charged with a Schedule 6 offence could establish the requirement by proving that there are exceptional circumstances relating to his or her emotional condition that render it in the interest of justice that release on bail be ordered notwithstanding the gravity of the case."

Now all I am saying here is that, the learned judge of the Constitutional Court, KRIEGLER, J, said, "Do not ask me to define exceptional, because if I do then it means I know what it is". Then he said the circumstances of every case will decide what is exceptional and at that stage the matter will be attended to. In my view, the circumstances in this case are - if that is the route - exceptional. Although, I could not attribute blame in this case to the state or the defence, there is a way in which this delay could in some way be viewed in the manner that is contemplated in section 342A, but I must add that that section talks only about unreasonable delay. You had to find fault with some person or the other but the idea that a court must be concerned about a delay does not require section 342A. There is a delay beyond the accused person themselves, even though it may be explained in terms of one person or the other, it is just not appropriate.

Now I am want to ask you the following. Mr Mabena, what is your police station, the one you mentioned a short while ago?

ACCUSED NO 1: (through interpreter) Tweefontein F Police Station.

Is it the same for you Mr Bofu?

ACCUSED NO 2: (through interpreter) Correct.

Now, what I am going to say here apply to each of you exactly, identically. The case is not over, but I want you to go home and come back like other people do who had to come to court. That will be on 14 up to 17 March on each of those days next year 2006, provided you each pay R1 000,00 bail. Now if you want to know how bad I can be do not come to court. Then what you have seen so far is - as they would say in America - you ain't seen nothing yet. So do not take chances come back to court. It is not because I like you. I do not like people who, even if they have not been proved guilty totally, but people who dabble around crime I do not like, especially as someone has found you guilty. But you are human beings that is why I am doing this. Now, whether you have committed the crimes or not, start today being human beings and come to court like you are told to behave like human beings.

Let me just tell you this I have faith in human beings. I have released others in your circumstances and they have come back to court. I am confident you will come to court. Will you? Anyway, I have no problem, if you do not come you will know what it is to be on the wrong side. So then, remember, I want you to report each of you, at that police station you have mentioned every Friday. You are entitled to report when you wake in the morning, early morning, on Friday at 12:01. You can go and report or you can report 23:59 at night as long as it is that Friday and you do not have to go together, but each of you must report independently. 24:01 on Friday you are gone and that is the day you will know what will happen to you.

Let me just tell you, I have heard the investigating officer talking that you are not easily found, there is nobody that has not been found in South Africa when the police we want to get him or her. The police cannot fail to get you, but besides, do not let that arise just report all the time. If there is any difficulty humanly conceivable, not conceivable right now perhaps, you have got your lawyers. Take their phone numbers and keep in touch with them. Now, the final step is this, also on the same conditions, you do not ever talk to the witnesses in this case and their relatives and friends. Just keep away from them you know them. No phone calls, no SMS to say anything to them, because everything you do we can reach. If you do not know about that you will discover how much everything that you do can be discovered. Mr Mabena when are you going to come back to court?

ACCUSED NO 1: Next year March.

(Conversation in black language with accused no 1)

Not just 17th, but when you get out of here write it somewhere, on a piece of paper and keep it somewhere and each keep it and remind each other. You understand as well Mr Bofu? This case is being postponed then as stated. I must thank all of you for your participation. Ms Mahanjan because I know that you are going to have to answer for what I have done but you can always quote me and ask them to come and listen to the cassette and find that you did your best.

One day, there will come a day when maybe you will be in charge and I won't have to be doing this, you would be the first one to say M'Lord can they be out on bail. I am hoping that that day will come especially being, apart from being who you are, being a woman - female. One day females will be in charge, I know they have more understanding about human beings, so I am looking forward to that day.

The court adjourns.

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