S v Mataboge and Others

• Jurisdiction: South Africa
• Judge: Waddington J
• Judgment Date: 27 June 1990
• Counsel: C R Mailer for the applicants L Els (Deputy Attorney-General, Bophuthatswana) for the respondent (the State)
• Citation: 1991 (1) SACR 539 (B)
• Court: Bophuthatswana High Court

Waddington J:

The applicants were arrested on a charge of high treason. H They have appeared in the magistrate's court several times for the purpose of being remanded. For reasons which have not been made entirely clear, none wished to make application in that court to be released on bail. This Court was informed that an approach was made to the learned Chief Justice in Chambers by counsel for the applicants. Present was the Attorney-General. Following that meeting the Attorney-General agreed to I indict all eight applicants in the Supreme Court for summary trial so that an application for bail might be brought in this Court without delay.

The application for bail has now been made notwithstanding the fact that the Attorney-General has not served any notice of trial on the applicants or provided them with any list of State witnesses or summary of essential facts pursuant to the provisions contained in s 144(4)(a) of the Criminal Procedure Act 51 of 1977. Counsel for the applicants J informed the Court that the

Waddington J

A applicants had waived the right to receive these documents pro tem. The Deputy Attorney-General, Mr Els, informed the Court that the case against the applicants was still in the process of investigation, and that the indictment to which the applicants have already pleaded in the magistrate's court will probably be altered before the applicants are arraigned for trial. One of the results flowing from the adoption of this procedure has, quite obviously, been that the information upon B which this Court has been required to reach its decision has not been as full as it might have been had the normal procedure been followed.

A separate affidavit deposed to by each applicant was produced on his behalf. Each individual affidavit deals, in the main, with the personal circumstances of the relevant applicant. Each affidavit also deals with the financial position of the deponent, each contains what amounts to a plea of not guilty, where appropriate any criminal record of the C deponent is dealt with and each contains an undertaking to comply with any bail conditions which may be imposed should the application be granted. A supplementary affidavit signed by each of the applicants was also produced as part of the applicants' case. The supplementary affidavit serves the purpose of dissociating each and every one of the applicants from the contents of a letter addressed to the President of Bophuthatswana by one Rocky Malebane-Metsing, who is the leader of a D political party known as the Peoples' Progressive Party of which the eight applicants are members.

No evidence was adduced on behalf of the State either in the form of viva voce evidence or affidavit. The objection to the application and the facts on which the State case is based was outlined orally from the Bar by Mr Els. The only document placed before the Court by the State consisted of an indictment.

To place the application for bail in its proper perspective it is E desirable to outline the case for the State, such as it is at this stage. On 10 February 1988 various apparently treasonable acts were allegedly committed by various persons in Mmabatho. There was a pre-dawn attack on the home of the President who was captured. Attempts were made to force him to resign his position but this he refused to do. At the same time homes of different Cabinet Ministers were attacked and they F and their families were taken into illegal custody. Some ministers were coerced into signing resignation documents. Elements of the Defence Forces mutinied and took over the Molopo Military Base which was thereafter controlled by unauthorised personnel. Movement to and from the base was thereafter illegally controlled. Some Cabinet Ministers and senior military personnel were unlawfully deprived of their liberty by G being detained at the Molopo Military Base. The Bophuthatswana Broadcasting Centre was occupied. Announcers were forced to broadcast communications to the general public indicating that the lawful Government of Bophuthatswana had been overthrown and that it had been taken over by the Defence Forces. Later in the day the President, Ministers of State, the Commissioner of Police and senior military personnel were held hostage inside the National Independence Stadium. H Their detention was allegedly illegal. They were threatened and guarded at gunpoint. When later in the day military forces from a neighbouring friendly State came to the assistance of the lawfully constituted authority, an attempt was made to remove the hostages from the National Independence Stadium to the Molopo Military Base to frustrate any attempts to liberate them. The principal Government administrative building was occupied, public servants were refused entry at gunpoint I and sent home. Meetings were held at the Molopo Military Base during the day and soldiers and officers were informed that the Government had been overthrown by the Defence Force, that the President and all Cabinet Ministers had resigned their posts, that a new President had been sworn in and a new Cabinet appointed. The 'new' President and a number of 'Cabinet Ministers' were introduced to those present. The Commissioner J of Police and other officers of different limbs of the Defence

Waddington J

A Forces not sympathetic to the attempt to overthrow the Government were captured, detained unlawfully and held at the National Independence Stadium. An attempt was made to force the Chief Justice of Bophuthatswana to swear in a new President. The Molopo Military Airfield was occupied. Personnel reporting for duty were captured and unlawfully detained. They were subsequently removed to the National Independence B Stadium there to join the other hostages already in unlawful detention.

The main count consists of a charge of high treason particularising the events described in the preceding paragraph. There are three alternative charges. Each of the alternatives relies on the particulars already referred to. It is unnecessary to detail the alternative charges. It is sufficient to state that they consist of alleged contraventions of the Internal Security Act 32 of 1979.

C The cumulative effect of the particulars already referred to in this judgment disclose, were those particulars to be proved, an extremely serious example of the crime of high treason by the principal actors concerned.

The principles governing the grant of bail are now well established. Counsel for the applicants referred the Court to numerous authorities. The essential principles to be taken into account in deciding whether D bail may safely be granted may be summarised in the following way. An accused person until convicted is presumed innocent. Because he is presumed innocent he may not be punished, for example, by way of imprisonment. In general where a Court is satisfied that the accused will stand his trial were he to be released on bail the inclination is towards granting the subject liberty pending his trial. Ordinarily, it is, for obvious reasons, in the interests of justice that a person E should be given the fullest possible opportunity of preparing his defence. This he can do with greater facility while free from restraint. On the other hand the interests of the administration of justice must properly be served by the courts. It is in the public interest that persons charged with serious offences should stand trial to be judged. In endeavouring to protect the due and proper administration of justice and in safeguarding the liberty of the subject, courts are required to F strike a balance between the two interests which I have mentioned. The position is persuasively described by Miller J (as he then was) in the case of S v Essack 1965 (2) SA 161 (D) at 162C-H where it was said:

'In dealing with an application of this nature, it is necessary to strike a balance, as far as that can be done, between protecting the liberty of the individual and safeguarding and ensuring the proper G administration of justice. I refer, in acknowledgement of those words, to the judgment of Diemont J in the case of S v Mhlawli and Others 1963 (3) SA 795 (C) at 796. The presumption of innocence operates in favour of the applicant even where it is said that there is a strong prima facie case against him, but if there are indications that the proper administration of justice and the safeguarding thereof may be defeated or frustrated if he is allowed out on bail, the Court would H be fully justified in refusing to allow him bail. It seems to me, speaking generally, that before it can be said that there is any likelihood of justice being frustrated through an accused person resorting to the known devices to evade standing his trial, there should be some evidence or some indication which touches the applicant personally in regard to such likelihood. General observations I applicable to a certain group of persons are undoubtedly relevant and entitled to some weight if the applicant is a member of that group, but they can never be conclusive in themselves. Each case must be considered on its merits but I am inclined to agree with counsel for the State that if the offence is of the type which experience shows usually leads to the accused effecting his escape through familiar and well known routes and if it appears moreover...