S v Lukas and Others

• Jurisdiction: South Africa

S v Lukas and Others
1991 (2) SACR 429 (E)

1991 (2) SACR p429

Citation	1991 (2) SACR 429 (E)
Court	Eastern Cape Division
Judge	Kroon J
Heard	October 23, 1990
Judgment	October 23, 1990
Counsel	F H Bunting for the appellants; L Moffit for the State

Flynote : Sleutelwoorde B

Bail — Application for — Factors to be taken into account — Appellants held in custody on charges of murder, attempted murder, arson, assault with intent to do grievous bodily harm and public violence arising out of unrest-related incidents in Black township — Township divided into rival factions, one of which aligned to ANC and having appellants as members — C Accused in unconnected case facing similar charges arising from unrest-related incidents and belonging to different faction to appellants — Such accused granted bail in magistrate's court — Contended for appellants that refusal of bail in instant case would create perception that court biased against ANC-aligned faction — Court holding that application for bail to be decided on own facts and established principles and latter not entitling Court to take cognisance of fact that accused D belonging to rival faction and arraigned on similar charges granted bail — Court also cannot take into account probability that accused would be granted indemnity from prosecution in terms of Pretoria Minute — Court of law cannot subvert principles of law as result of negotiations between Government and other bodies — Appeal against refusal of bail dismissed. E

Headnote : Kopnota

The nine appellants, who were in custody awaiting trial on charges of murder, attempted murder, arson, assault with intent to do grievous bodily harm and two counts of public violence, allegedly arising out of an unrest situation in the Black township of Graaff-Reinet, had applied for bail in the magistrate's court at Graaff-Reinet. The application, as well as a F second application a month later, during which several witnesses testified for the State and the appellants, was dismissed. On appeal against the refusal of bail, it was contended for the appellants that the magistrate had misdirected himself on various grounds: it was argued firstly that in another matter also arising out of unrest in the Black township of Graaff-Reinet, in which a Black councillor and his family were the accused G on a charge of murder, the accused had been granted bail by the magistrate's court, and that the appellants should be similarly treated. It was pointed out that the Black community in Graaff-Reinet was divided in two factions, ie the faction aligned to the ANC and GRARA (the Graaff-Reinet Residents' Association) which was opposed to the establishment of township councils and the faction which supported the H institution thereof, and that the appellants belonged to the former faction while the accused in the other matter belonged to the latter faction. It was contended that in the circumstances and where there was a similarity between the charges in the two cases, the grant of bail in one case and the refusal thereof in the other would have the effect of inducing a perception in the minds of the community that the Court was I favouring the interests of the one faction at the expense of the other and that the matter of bail was being used to penalise the one faction for its alignment to organisations such as the ANC and GRARA. The Court held that an application for bail had to be decided on the facts of each case and the principles applicable and in terms of those principles the circumstance that in some other case, the facts of which were not known save that the accused in that case belonged to a rival faction, the J accused were granted bail was not a relevant

1991 (2) SACR p430

A consideration and the contention that the magistrate had utilised his decision to effect a penalty to the ANC-aligned faction was without substance. Another factor which the magistrate had correctly disregarded was the circumstance, advanced on behalf of the appellants, that the community interest would be served by the release of the appellants on bail. Upon analysis the evidence adduced in this regard amounted to no B more than that a section of the community, namely that with which the appellants were aligned, desired that the appellants be released.

A third contention advanced by the appellants was to the effect that the magistrate had erred in disregarding the probability, established by the evidence, that the appellants would be granted an indemnity from prosecution in respect of the instant charges in terms of the Pretoria C Minute, and that this was a relevant consideration in their application for bail. The Court rejected this contention, holding that, apart from the fact that the probability had not been established, a court of law was not required to subvert the ordinary legal principles applicable to a matter before it by reason of the negotiations and agreements reached between the Government and another political body. The Court, after D dealing with and rejecting various other contentions advanced by appellants on the facts, held that the magistrate had not incorrectly exercised his discretion to refuse bail and dismissed the appeal.

Case Information

Appeal against the refusal of bail by a magistrate. The facts appear from the reasons for judgment. E

F H Bunting for the appellants.

L Moffit for the State.

Judgment

Kroon J:

This is an appeal brought in terms of s 65 of the Criminal Procedure Act 51 of 1977 against the refusal by a magistrate sitting at F Graaff-Reinet of an application to be released on bail made by the nine appellants.

The appellants are in custody awaiting trial on charges of murder, attempted murder, arson, assault with intent to do grievous bodily harm and two counts of public violence, all of which offences were allegedly committed on 10 July 1990. It is the State's averment that all the counts arose out of an unrest-related incident.

G There was evidence in the court below to the effect that the appellants could be connected with three further charges of arson and that these further charges were to be added to the indictment. In my judgment, however, unless and until the appellants are actually charged with such further counts, they must be left out of consideration.

The appellants were arrested on 15 July 1990. On 18 July 1990 the H appellants launched the application for bail and on that occasion all nine appellants gave evidence under oath. The State adduced the evidence of Warrant Officer Faure, the investigating officer, and Warrant Officer Stander, a security policeman. On 19 July 1990 the magistrate gave judgment dismissing the application. On 17 August 1990 the application was renewed and additional facts by way of further evidence were placed I before the magistrate. On this occasion the witnesses who testified on behalf of the appellants were one Nompondo, one Jantjies, both holding leadership positions in the Graaff-Reinet branch of the organisation known as the African National Congress ('ANC') and the organisation styled the Graaff-Reinet Residents' Association ('GRARA') and a Mrs Lacey, a lecturer in the Department of Political Studies at Rhodes University and a member of the ANC. The evidence adduced on behalf of the State was that of one Van Wyk, the chairman of the Graaff-Reinet J Afrikaanse Sakekamer and

1991 (2) SACR p431

Kroon J

A Warrant Officer Crouse, a member of the South African Police at Graaff-Reinet. In the result the magistrate re-affirmed his previous decision to dismiss the application.

In the course of the evidence of the respective appellants, each

(a)

denied that he had committed any of the offences in question;

(b)

claimed that, if released on bail, he would stand his trial and B not abscond; and

(c)

would not interfere or tamper with the State witnesses, the identities of whom were in any event not known.

Certain of the appellants went further and added that they would not commit offences while released on bail, nor do anything to frustrate the course of justice or threaten the security of the State. Each appellant disclosed circumstances relating to himself personally, to which I will C revert in due course.

I do not consider it necessary at this stage to set out the effect of the evidence of the other witnesses and will do so to the extent that it is necessary when I discuss the validity of the magistrate's judgment.

The essential findings of the magistrate in his first judgment and the evidence on which they were founded may be summarised as follows:

(1) The seriousness of the charges faced by the appellants, the D corollary of which was that, in the event of conviction, substantial sentences were to be expected, had a direct bearing on the question whether they would attend their trial, on the basis that the heavier the likely sentence, the greater the temptation of the accused person to abscond. The magistrate referred in this regard to S v Nichas and Another 1977 (1) SA 257 (C) at 263G and S v Groesbeek en 'n Ander 1969 E (4) SA 455 (O) at 459-60.

In casu, so the magistrate said, in the light of the seriousness of the charges and the possible heavy sentences, it could well be argued that there was a risk that the appellants would not stand their trial. The magistrate made it clear, however, that it was not his approach that a charge of a particular nature would automatically disqualify an F accused from being granted bail.

(2) In regard to the relative strengths of the State case and the defences of the appellants, the magistrate referred to the evidence of Faure to the effect that the State had available an eye-witness, namely the complainant on the charge of attempted murder, who would positively identify all nine appellants. She had witnessed the whole incident in question, ie that...