Sejake v S (A148/2021) [2021] ZAFSHC 331 (17 December 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No: A148/2021

In the matter between:

MPHO

ERNEST

SEJAKE Appellant

and

THE

STATE Respondent

JUDGMENT BY: MOLITSOANE,

J

HEARD ON:

10 DECEMBER 2021

DELIVERED ON: 17 DECEMBER 2021

[1] This is an appeal against the refusal of bail by the Magistrate of Kroonstad. The appellant appeared in the court a quo on four charges, to wit, contravention of section 4(a) of the Prevention of Organised Crime Act, 121 of 1998 (money laundering), fraud, two counts of contravention of sections 93(1) and 93(2) of the Legal Practise Act, 28 of 2014.

[2] The allegation by the State is that in respect of the fraud charge the amount involved exceeded R500 000. As a result, it became common cause that the bail application resorted under schedule 5 of the Criminal Procedure Act, 51 of 1977. The appellant therefore bore the onus to satisfy the court that the interests of justice permitted his release on bail.

[3] The appellant testified in his bail application and did not call any witness in support of his bail application. The State, in opposition of the release on bail, led the evidence of the investigating officer.

[4] In a terse and cryptic judgment the court gave the following as its reasons for the refusal of bail as reproduced from the transcribed record:

“Now, it is now 25 to 5. The court is not going to give complete judgment, but the court wants to make the following remarks:

Regarding the strength of the state’s, there is also case law that it is not necessary for the state to give an indication of a strong case. It is rather the defence that must point out a weak case. And for purposes of the bail application prima facie case is enough.

In this case the court finds that if the court look [s] at the elements as a total and one can…[indistinct]. That there is a strong case against accused 1.

…

It is also a factor that the court has to take into consideration is the seriousness of the offence and the consequences there are the possibility…[ inaudible- voice cuts out].

That being said, if the court look at the case as a whole and the court then finds that the cumulative factors, or the factors just…[indistinct] as well as this, the court finds that applicant 1 did not satisfy the court that the interest of justice permits his release and the court orders that applicant 1 will stay IN CUSTODY until his case is finalised.”

[5] The extract from above illustrates that the court was of the view that the appellant failed to discharge his onus of establishing that the interests of justice require that he be released on bail. The difficulty however is that the court a quo did not deal with the reasons why the appellant should not be permitted on bail. It seems that it took into account the fact that there was a strong case against the appellant.

[6] The appellant is 23 years of age and stays in Kroonstad. He is married with two minor children aged 9 and 2 years respectively. He is self-employed and does consultancy work for different Non –Governmental Organisations. His average income ranges between R8 000 to R20 000 per month. He has assets valued at R100 000. He has no previous convictions and pending cases. The rest of his evidence deal with the issues in section 60(4) of the CPA. The cross examination of the appellant was focused on eliciting evidence on the merits of the case, presumably to show that the case against the accused was strong.

[7] Like the cross examination of the appellant, the evidence of the state was geared up to show that the case against the accused was strong and that there was a likelihood that the accused would be convicted at a subsequent trial. The possibility of influencing state witnesses was also explored. The case against the appellant is simply that over a period of time he passed himself off as an attorney in Kroonstad and ‘practised as such’. He collected money from people when he was not so entitled and thus defrauded them. In one of the cases it is alleged that he stole an amount of R1,7 million from a member of the public. It is the state’s case that he is not legally qualified and had no authority from the Legal Practice Council to practise.

[8] During the hearing of this appeal Adv. Strauss appearing for the respondent conceded that the issue of influencing the state witnesses could be addressed by imposing appropriate conditions. He submitted that the opposition of the respondent was based on what he termed ‘sheer arrogance’ of the appellant. It seems that there were few dockets opened against the appellant. He was released on bail in respect of one of the charges. He attended court and it appears that he never defaulted in his attendance. That matter was withdrawn to be consolidated with other new cases including the present one. That consolidation led to effectively being in custody pending the trial of the consolidated matters.

[9] The grounds of appeal are set out in three pages in the Notice of Appeal the essence of which is that the court a quo erred in finding that the appellant failed to discharge the onus imposed on him in terms of s60(4).

[10] Section 65(4) of the CPA provides:

The court of 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 is wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have been given.”

[11] Section 65(4) limits the powers of the court of appeal. The interference with the discretion of the court a quo is only sanctioned where it appears that to the court exercising the appellate jurisdiction that the court a quo exercised its discretion wrongly.[1]

[12] In order to determine whether to release the accused from detention the stipulations set out in s60(4)(a) to (e) should be considered. It is in my view unnecessary at this stage to consider all the stipulations in view of fact that the only issue in dispute is that there is a likelihood that should the appellant be admitted to bail he would commit further offences.

[13] It is important to note that in considering bail, two opposing interests come to play, namely, the interests of the accused to his right to freedom, who at this stage is presumed innocent until proven guilty and the administration of justice, on the one hand, in seeking non-interference with the cause of justice and speedy finalisation of cases.In S v Dlamine; Sv Dladla; S v Joubert; Sv Schietekat[2] the court said:

“The interests of justice in regard to the grant or refusal of bail therefor do focus primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with proper investigation of the case.”

[14] It would seem from the judgment of the court a quo that the primary focus of the court in the determination of where the interests of justice lie, the court was fixated on the strength of the state’s case against the accused. The strength of the state case is but one of the factors to be taken into account in determining the issue of bail. It has to be borne in mind that during bail applications the court does not determine the guilt or otherwise of the accused. That is the function of the trial court. The court need not even consider if there is a reasonable possibility that the accused will be convicted in the subsequent trial.

[15] It is in my view not in dispute that the appellant faces serious charges which might lead to long terms of imprisonment should he be convicted. From the record it appears that the state has a strong case against him. What however has to be borne in mind is that the appellant had been permitted on bail previously on one of the charges. There is no evidence that he defaulted during the subsistence of that case. The only reason that he found himself in detention in respect of that charge is that same was withdrawn and consolidated with others. In my view the court a quo exercised its discretion wrongly in only taking into account the strength of the state’s case in determining where the interests of justice lie for purposes of the adjudication of the release of the appellant on bail.

[16] It is indeed so that the conduct of the appellant after his release appears to be arrogant as submitted by the state. But that conduct may in my view also be addressed by proper conditions in view of the fact that the appellant has not been convicted. No evidence has been led to indicate that should the appellant be released on bail he will not stand his trial. It is my considered view that the interests of justice do not permit that the accused should be kept in custody. With regard to the possible fear of interference with the state witnesses I will make appropriate orders to address that taking into account that I was not supplied with the list of such witnesses. I accordingly make the following orders:

ORDER

1. The appeal against the refusal of the accused on bail is upheld.

2. The order of the court a quo is set aside and replaced with the following:

3. The bail of the accused is fixed at R10 000(Ten Thousand Rand) with the following conditions:

a) That should the accused pay the said bail he must appear before the competent court scheduled in this matter at 8h30 and to remain in attendance;

b) The accused must have no contact directly or indirectly with the witnesses for the state;

c) Should the accused appear before any court or tribunal acting as a legal practitioner, he must produce on every such occasion, an original or notarially certified copy of his order of admission as a practising legal practitioner granted by a competent court as well as a certificate of enrolment as a practising attorney or advocate issued by the Legal Practice Council to the judicial officer or chairperson of the tribunal concerned and the appellant shall ensure that such documents form part of the record in which he appears;

d) The accused is hereby ordered not to consult or receive monies from the public as an attorney without the consent or permission of the Legal Practise Council;

4. The Investigating Officer in consultation with the Public Prosecutor must forthwith deliver a list of witnesses to the appellant if he has not appeared before court or after such appearance if the court has not supplied him with such, which list may be amended from time to time by a competent court.

P.E MOLITSOANE, J

On behalf of the Applicant: Adv. Mokoena

Instructed by: Legal Aid South Africa

BLOEMFONTEIN

On behalf of the Respondent: Adv. M Strauss

Instructed by: Director of the Public Prosecutions

[1] S v Barber 1979(4) SA 218(D) at 220 E-H; S v Porthen and Others 2004(2) SACR para 4.

[2] 1999(2) SACR 51 9CC) para 52.