S v Kock

• Jurisdiction: South Africa
• Citation: 2003 (2) SACR 5 (SCA)

S v Kock
2003 (2) SACR 5 (SCA)

2003 (2) SACR p5

Citation	2003 (2) SACR 5 (SCA)
Case No	A670/02
Court	Supreme Court of Appeal
Judge	Howie P, Heher AJA and Shongwe AJA
Heard	January 14, 2003
Judgment	January 14, 2003
Counsel	P A Wilkins SC for the appellant.; A M Mohlala for the State.

Flynote : Sleutelwoorde G

Bail — Application for — Factors to be taken into account — 'Exceptional circumstances' as intended by s 60(11)(b) of Criminal Procedure Act 51 of 1977 — Strength of State case — No charge-sheet prepared at time of bail application and State refusing to H give defence access to docket — State not leading direct evidence, but only evidence of witnesses with no first-hand knowledge who did not testify as to specific incidents — Magistrate should have been conscious of prejudice to accused in allowing evidence on hit and miss approach followed by State — Magistrate should have required prosecutor to confine evidence to offences on which State relied for invocation of s 60(11)(b) or the I prosecutor intended, in alternative, to contend also for refusal of bail without reliance on scheduled offence, ascertained from her precisely which acts of accused State contended for as constituting Schedule 5 offences — State failing to make case or relying on one so lacking in detail or persuasion that court hearing J

2003 (2) SACR p6

bail application couldn't express even prima facie view as to its strength or weakness — Accused to receive benefit A of doubt — Such should be an important factor in court's evaluation of application.

Assault — Indecent assault — What constitutes — Indecent assault in its essence is assault (not merely act) which is by its nature or circumstances of indecent character — While there may be cases which so fundamentally breach boni mores that consent should not be recognised, acts such as those designed to prepare participants for B more adventurous stage of sexual exploration not falling into such category where no bodily harm involved.

Bail — Application for — Factors to be taken into account — 'Exceptional circumstances' as intended by s 60(11)(b) of Criminal Procedure Act 51 of 1977 — Semble: Section 60(11)(b) provides for accused to be given reasonable C opportunity to adduce evidence to satisfy court that justice permits her or his release — There must exist serious doubt whether accused, favoured by State with sparse information about charges against her or him, can be said to have been afforded such an opportunity.

Bail — Appeal against refusal of — From decision of single Judge of High Court upholding refusal of bail in magistrate's court — Semble: Where bail application D initiated in magistrate's court and pursued before single Judge of High Court, law allows further appeal only to Supreme Court of Appeal — Where appeal requires no in-depth consideration of legal issues, such can be disposed of before Full Court of relevant Division at least as expeditiously and at less expense to both appellant and State if law provided greater E flexibility — This is concern which warrants attention of Legislature sooner rather than later.

Headnote : Kopnota

The appellant had been charged with indecent assault on boys under the age of 16. At a bail application the State relied on s 60(11)(b) of the Criminal Procedure Act 51 of 1977 to F contend that the appellant should be denied bail unless he could satisfy the court that the interests of justice permitted his release. At that stage no charge-sheet had been drawn up and none of the potential complainants testified, the State relying on witnesses who did not have first-hand knowledge of the allegations. The evidence merely disclosed allegations of 'grooming', ie acts designed to prepare participants for a more adventurous stage of sexual exploration. There was no suggestion that consent had been lacking. The G magistrate found that the evidence was relevant to the prospects of conviction, as she held that indecent assault was not only an offence where the accused had to touch the private parts of the children or otherwise but also any immoral or indecent act which is in its nature or circumstances indecent or immoral. H

Held, that indecent assault was in its essence an assault (not merely an act) which was by its nature or circumstances of an indecent character. While there may be cases which so fundamentally breached boni mores that consent should not be recognised, the acts alleged against the appellant did not fall into such a category. Nor was bodily harm involved. The evidence had not suggested the unlawful application of force (in the broad sense) or a threat to I inflict such force. (Paragraph [9] at 10f - g.)

Held, further, that the magistrate should have been conscious of the prejudice to the appellant in allowing evidence on the hit and miss approach followed by the State. She should have required the prosecutor to confine her evidence to the offences on which she relied for her invocation of s 60(11)(b) or if the prosecutor intended, in the alternative, to contend also for refusal of bail J

2003 (2) SACR p7

without reliance on a scheduled offence, have ascertained from her precisely which acts of the appellant the State contended for as A constituting Schedule 5 offences. (Paragraph [9] at 10i - 11a.)

Held, further, that, when the State had either failed to make a case or had relied on one which was so lacking in detail or persuasion that a court hearing a bail application could not express even a prima facie view as to its strength or weakness, the accused had to receive the benefit of the doubt. The case presented to B the court of first instance fell into the second category. That should have been an important factor in the magistrate's evaluation of the application. (Paragraph [15] at 11j - 12a.)

Held, further, that in casu the Court was faced with an appellant against whom only the flimsiest of cases had been set up; there was no well-grounded reason to believe that he would influence State witnesses pending the trial or would remove himself C from the oversight of the authorities; his medical condition indicated that it was in his interest to be released on bail. In the circumstances the interests of justice, and taking into account the personal circumstances of the appellant, leant strongly in favour of the appellant. Accordingly, the magistrate had refused to grant bail to the appellant wrongly and the Court a quo had erred in upholding her order. (Paragraph [24] at 14b - d.) D

Semble: Section 60(11)(b) provides for an accused to be given a reasonable opportunity to adduce evidence to satisfy the court that justice permits her or his release. There must exist serious doubt, to say the least, whether an accused, favoured by the State with sparse information about the charges against her or him, can be said to have been afforded such an opportunity. (Paragraph [25] at 14e - f.) E

Semble: Where a bail application has been initiated in the magistrate's court and pursued before a single Judge of the High Court, the law allows a further appeal only to the Supreme Court of Appeal (by reason of s 21(1) of the Supreme Court Act 59 of 1959). The present appeal, which required no in-depth consideration of legal issues, could have been disposed of before a Full Court of the F Witwatersrand Local Division at least as expeditiously and at less expense to both the appellant and the State if the law had provided greater flexibility. This is a concern which warrants the attention of the Legislature sooner rather than later. (Paragraph [26] at 14g - i.)

Cases cited

Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O): considered G

S v Botha en 'n Ander 2002 (1) SACR 222 (SCA): dictum in para [21] applied

S v Matsemela en 'n Ander 1988 (2) SA 254 (T): compared H

S v Viljoen 2002 (2) SACR 550 (SCA): dictum in para [11] applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 60(11)(b) and Schedule 5: see Juta's Statutes of South Africa 2001 vol 1 at 1-282

The Supreme Court Act 59 of 1959, s 21(1): see Juta's Statutes of South Africa 2001 vol 1 at 1-87. I

Case Information

Appeal from a decision in the Witwatersrand Local Division (Fev- rier J). The facts appear from the reasons for judgment.

P A Wilkins SC for the appellant.

A M Mohlala for the State. J

2003 (2) SACR p8

In addition to the authorities cited in the judgment of the Court, A counsel for the parties referred to the following:

De Jager v Attorney-General, Natal 1967 (4) SA 143 (D)

Ex parte Quantani 1946 EDL 173

Minister van Wet en Orde en Andere v Dipper 1993 (3) SA 591 (A)

R v McCarthy 1906 TS 657 at 659 B

R v Ngema 1960 (2) SA 263 (T)

S v Acheson 1991 (2)...