S v Nwabunwanne

• Jurisdiction: South Africa
• Judgment Date: 31 January 2017
• Citation: 2017 (2) SACR 124 (NCK)

S v Nwabunwanne
2017 (2) SACR 124 (NCK)

2017 (2) SACR p124

Citation	2017 (2) SACR 124 (NCK)
Case No	CA&R 114/2016
Court	Northern Cape Division, Kimberley
Judge	Erasmus AJ
Heard	January 24, 2017
Judgment	January 31, 2017
Counsel	Information not supplied

Flynote : Sleutelwoorde

Bail B — Application for — Onus — On accused — Section 60(11) of Criminal Procedure Act 51 of 1977 — Before accused burdened with onus, jurisdictional fact that offence was one listed in sch 5 or 6 to Act to be properly established.

Bail C — Application for — Onus — On accused — Section 60(11) of Criminal Procedure Act 51 of 1977 — Given drastic consequences of s 60(11), desirable that procedural provisions of s 60(11A) be closely adhered to.

Bail — Application for — Second or subsequent application — New facts — Accused should not lightly be denied opportunity of presenting new D facts.

Headnote : Kopnota

The appellant appealed against an initial refusal of bail by a magistrate and also a subsequent application to introduce new facts in a further application for bail. The charge-sheet indicated that he was charged with two counts of contravening s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the E Act), in that he had dealt in cocaine and methamphetamine, undesirable dependence-producing substances listed in part III of sch 2 to the Act. The weights of the substances were specified in said charge-sheet, but not the value thereof.

At the outset of the initial bail application, the prosecutor indicated that the application was one in terms of sch 5 as envisaged in s 60(11)(b) of F the Criminal Procedure Act 51 of 1977 (the CPA). Despite this, the prosecutor appeared to accept the onus and commenced proceedings by leading the evidence of the investigating officer, after which affidavits by the appellant (and his co-accused) were presented in support of the application. It was only during argument that the appellant's legal representative addressed this issue, submitting that it was a sch 1 application and that the G state accordingly bore the onus. In her judgment, the magistrate said that she would treat it as a normal bail application and found that the appellant was not a suitable candidate for bail. She also considered him to be a flight risk and accordingly refused bail.

In respect of the second application based on the introduction of new facts, the appellant averred that the evidence of the investigating officer, in the initial H bail application relating to video footage, appeared to be false and that he had misled the court. It was placed on record that the case docket indicated that there was neither video nor audio footage that linked him to either of the two offences that he had been charged with, because he was not the person in the video. In her further judgment, the magistrate did not deal with these issues, but found that the strength of the state's case would only I become clear at the end of a trial-within-a-trial. She also found that the appellant had not convinced her of any new facts, and denied him the opportunity to adduce evidence in this respect.

Held, that before an accused was burdened with the onus envisaged in s 60(11) of the CPA, the jurisdictional fact that the offence was one listed in sch 5 or 6 had to be established either by a certificate from the Director of Public J Prosecutions in terms of s 60(11A) or by means of a full description of the

2017 (2) SACR p125

charge in the charge-sheet, including the value of the A dependence-producing substance. The absence of both in the present case meant that it could not be ascertained whether the offences fell within the ambit of sch 5 (see [13]).

Held, further, that, given the drastic consequences for an accused if s 60(11) of the CPA applied, it was desirable that the procedural provisions of s 60(11A) B be closely adhered to, and that proof of the nature of the charges should occur with some formality, either at the commencement of proceedings or as soon thereafter as possible. The magistrate had erred in this respect and the appeal had to be allowed on this ground alone (see [15], [17] and [19]).

Held, further, as to the second application, that an accused should not lightly be denied the opportunity of presenting new facts by means of adducing C evidence. The submissions by the appellant's counsel indicated that, at least prima facie, the evidence in the initial bail application may have been compromised and the state's case might not be as strong as was suggested. The magistrate was also incorrect in ruling that the appellant had not established new facts, without having provided him the opportunity of adducing evidence in respect of the alleged new facts (see [25] and [27]). D

Bail application remitted to the court a quo for a ruling on whether it was to be adjudicated in terms of s 60(11)(b) and appellant to be afforded opportunity to adduce evidence pertaining to new facts in support of his further application.

Cases cited

Prokureur-Generaal, E Vrystaat v Ramokhosi 1997 (1) SACR 127 (O): dictum at 155d – h applied

S v Davis and Another KZD 2888/2015: referred to

S v De Villiers 1996 (2) SACR 122 (T): referred to

S v DV and Others 2012 (2) SACR 492 (GNP): dicta in paras [16] and [31] applied F

S v Gade [2007] 3 All SA 43 (NC): referred to

S v Green and Another 2006 (1) SACR 603 (SCA): dicta in paras [23] and [25] applied

S v Ho 1979 (3) SA 734 (W): referred to

S v Josephs 2001 (1) SACR 659 (C): dictum at 661f – h applied

S v Kock 2003 (2) SACR 5 (SCA) ([2003] ZASCA 1): dictum at 11i – 12a applied G

S v Mohammed 1999 (2) SACR 507 (C) ([1999] 4 All SA 533): followed

S v Petersen 2008 (2) SACR 355 (C): referred to

S v Tshabalala 1998 (2) SACR 259 (C): dictum at 269e – f applied

S v Vermaas 1996 (1) SACR 528 (T): followed. H

Legislation cited

The Criminal Procedure Act 51 of 1977, s 60(11), 60(11A) and schs 1, 5 and 6: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-340, 2-413 – 2-414 and 2-416 – 2-418

The Drugs and Drug Trafficking Act 140 of 1992, s 5(b), part III of sch 2: I see Juta's Statutes of South Africa 2015/16 vol 1 at 2-460 and 2-469.

Case Information

IJ Nel for the appellant, instructed by the Legal Aid Board.

IF Ilanga for the state.

An appeal against a refusal of bail in a magistrates' court. J

2017 (2) SACR p126

Order

1.

The A decisions of the magistrate, Kimberley, in the bail application under case No B 336/2016 are set aside.

2.

The bail application is remitted to the magistrate, to make a ruling as to whether the bail application is to be adjudicated in terms of the B provisions of s 60(11)(b) of the Criminal Procedure Act 51 of 1977.

3.

The appellant is to be afforded the opportunity to adduce evidence in support of his further bail application of 21 December 2016 in respect of the alleged new facts that had come to light and/or any new facts that had subsequently come to light.

4.

The respondent is to be afforded the opportunity to adduce further C evidence in response to any further evidence presented by the appellant.

5.

The appellant shall remain in custody pending the finalisation of the bail application by the magistrate, Kimberley.

Judgment

Erasmus AJ:

Introduction

[1] The appellant lodged an appeal to this court against the refusal by the magistrate, Kimberley, to release him on bail. The appellant is accused 2 in a pending criminal matter...