S v Mataboge and Others

• Jurisdiction: South Africa

S v Mataboge and Others
1991 (1) SACR 539 (B)

1991 (1) SACR p539

Citation	1991 (1) SACR 539 (B)
Court	Bophuthatswana General Division
Judge	Waddington J
Heard	June 14, 1990; June 15, 1990
Judgment	June 27, 1990
Counsel	C R Mailer for the applicants; L Els (Deputy Attorney-General, Bophuthatswana) for the respondent (the State)

Flynote : Sleutelwoorde E

Bail — Application for — General approach to such applications restated — Full circumstances of the individual application, the nature of the charge, the strength of prosecution case and severity of possible sentence to be considered — Ease with which accused could flee from jurisdiction of court to avoid trial also to be taken into account — Furthermore, F likelihood of accused tampering with State witnesses before trial or of hampering police investigations if released on bail also relevant — Important whether charge against accused is a crime affecting public safety, such as treason, sabotage or terrorism — Onus on applicant for bail to show on a balance of probability that he may be safely released — Bail refused for all applicants except one where charge was a serious one of treason, there was a strong prima facie case G against the accused and they had given very little evidence in support of their claims of innocence, most were of not substantial wealth and the temptation to flee was great in view of the heavy sentences which could be expected if they were convicted.

Headnote : Kopnota

The general approach to applications for bail as stated in S v Essack H 1965 (2) SA 161 (D) at 162C-H restated and adopted.

Obviously the failure of a person released on bail to attend his trial would seriously prejudice the ends of justice. Before admitting an accused person to bail, courts must therefore take into account in their consideration of the case the full circumstances of the individual application, the nature of the charge and the strength of the prosecution case, as well as the severity of the possible sentence. The I court must also take into account the ease with which an accused person could flee from the jurisdiction of the court to avoid trial. In other words, the court must seriously apply its mind to the inducement present in any given case such as might persuade the accused to abandon its former life in favour of liberty, if not life itself.

Courts will also consider whether there is any likelihood of the accused J tampering with State witnesses before the trial. Another question is

1991 (1) SACR p540

A whether there is any likelihood that the accused would hamper police investigations if released on bail. Another important factor to be taken into account is whether the charge under consideration relates to a crime affecting the public safety, such as treason, sabotage or terrorism. It has been held that the factor of public safety may well be relevant in an application for bail.

B The onus is upon the applicants for bail to show on a balance of probability that they may be safely released. The applicants are required to show on a balance of probabilities that the interests of justice will not be prejudiced in the sense that it is likely that they will stand their trial, not tamper with witnesses or otherwise interfere with the investigation of the case against them.

C Applying the above principles, the Court refused the applications for bail by all the accused in the present matter except the fourth accused. The Court held that the accused were facing a serious charge of treason; that the State, in opposing the application, had presented a strong prima facie case against the accused; that the accused had presented little or no evidence, other than a denial, in support of their D averments that they were not guilty; that none of the accused, except the fourth and fifth accused, were of substantial means and, in view of the fact that on the information before the Court heavy sentences should be expected if the accused were convicted, the temptation to flee the country and not stand trial was great. The Court held, accordingly, that the accused had not established on a balance of probabilities that they were likely to stand trial if released on bail. The Court granted the E fourth accused's application for bail, holding that he had a substantial domestic estate, was not a young man and was suffering from a condition requiring psychological therapy and was, having regard to this estate, family commitments and particularly his state of health, likely to stand trial. The Court further found that any sentence which might be imposed F on the fourth accused might not be as severe as the sentences which the other accused could expect.

Case Information

Application for bail. The facts appear from the reasons for judgment.

C R Mailer for the applicants.

L Els (Deputy Attorney-General, Bophuthatswana) for the respondent G (the State).

Cur adv vult.

Postea (27 June 1988).

Judgment

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

1991 (1) SACR p541

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...