S v Tshabalala

• Jurisdiction: South Africa
• Judge: Comrie J
• Judgment Date: 26 June 1998
• Citation: 1998 (2) SACR 259 (C)
• Hearing Date: 19 June 1998
• Counsel: A H Veldhuizen SC (with him J van den Berg) for the appellant J K Rossouw for the State
• Court: Cape Provincial Division

Comrie J:

This is a bail appeal.

The appellant is charged with the murder by shooting of her wealthy but estranged husband. As I understand the position, G it is not alleged that the appellant personally pulled the trigger of whatever firearm was used, or even that she was necessarily present at the time of her husband's demise. Rather, the State's case is that the appellant's alleged lover, one Xolani Hobongwana ('Xolani'), and perhaps others, acting in concert with the appellant, or under her direction, shot and H killed the deceased at his home in Camps Bay and left his body in the boot of his luxury motor car at the parking area of the Cape Town International Airport.

The deceased was murdered on about 2 June 1996. A warrant for the appellant's arrest was only procured and served I more than 20 months later, in February 1998. In the meantime the appellant's lover, the aforesaid Xolani, had been convicted of the murder by Lategan J and assessors, and sentenced to 30 years' imprisonment. A copy of the judgment on conviction forms part of the papers in the present matter, from which it appears that Xolani's evidence was rejected by the J trial Court in material respects. So too was the alibi evidence of a defence witness, Sipho Cohen Mposelwa ('Sipho').

Comrie J

The arrest of the appellant was effected on the morning of 24 February 1998. She applied for bail in the district court. Bail A was opposed by the State. All the evidence was presented in the form of affidavits. That was a permissible procedure, although unusual in an opposed application in which there were material disputes of fact. Compare Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A) at 197A - B. On 10 March 1998 the magistrate gave B his judgment denying bail. The appellant appealed to this Court. On 24 March 1998 Griesel AJ, as he then was, delivered judgment dismissing the appeal. The learned Judge refused leave to appeal, but on 8 May 1998 the Supreme Court of Appeal granted leave to appeal to the Full Bench of this Court. It is that appeal, heard on 19 June 1998, which is the subject-matter of this judgment. C

The only ground upon which bail was opposed in the district court, put broadly for the moment, was that the appellant, if given her liberty, would 'interfere' with prosecution witnesses just as, so it was alleged, she had done previously in the course of the police investigation and prior to the trial of Xolani. This ground of opposition is in substance covered by s 60(4)(c) of the Criminal Procedure Act 51 of 1977: D

'60(4) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established: E

. . .

(c)

where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence;'

Section 60(7) elaborates on the factors which may be taken into account in considering whether ss (4)(c) has been established. Further s 60(9) provides: F

'60(9) In considering the question in ss (4) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely - G

(a)

the period for which the accused has already been in custody since his or her arrest;

(b)

the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

(c)

the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; H

(d)

any financial loss which the accused may suffer owing to his or her detention;

(e)

any impediment to the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;

(f)

the state of health of the accused; or I

(g)

any other factor which in the opinion of the court should be taken into account.'

However, s 60(11) provides:

'60(11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to - J

Comrie J

(a)

A in Schedule 5;

(b)

in Schedule 1, which was allegedly committed whilst he or she was released on bail in respect of a schedule 1 offence,

the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having B been given a reasonable opportunity to do so, satisfies the court that the interests of justice do not require his or her detention in custody.'

(Emphasis added.)

Schedule 5 lists a number of serious crimes, one of them being:

C 'Murder, involving the use of a dangerous weapon or firearm as defined in the Dangerous Weapons Act 71 of 1968.'

Bail appeals are governed by s 65 of the Criminal Procedure Act. Section 65(4) provides:

'65(4) The court or Judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or Judge is satisfied that the decision was wrong, in which event the court or Judge shall give the decision which in its or his opinion the lower court should D have given.'

The constitutional validity of s 60(11) was questioned under the interim Constitution, Act 200 of 1993, which by s 25(2)(d) entitled an arrested person:

'(d)

E to be released from detention with or without bail, unless the interests of justice require otherwise'.

See Du Toit et al Commentary on the Criminal Procedure Act ad s 60(11). The present matter is governed by the (final) Constitution, Act 108 of 1996, which came into force on 7 February 1997 and thus well before the appellant's arrest. F Section 35(1)(f) of the final Constitution entitles an arrested person:

'(f)

to be released from detention if the interests of justice permit, subject to reasonable conditions'.

G The contrast in language between the two provisions ('unless' and 'if') suggests that it may not be unconstitutional for the Legislature to cast some onus or burden of proof upon an arrested person applying for bail. In this Court the appellant nonetheless advances the contention that s 60(11) is unconstitutional because it imposes a so-called 'reverse onus' upon an arrested person. The appellant further contends that Schedule 5 should be struck down because (I quote from the heads of H argument):

'(it) contains crimes which have been arbitrarily included and without there being a logical or rational connection between such crimes and any risk(s) to the interests of justice'.

It may be noted that the constitutional validity of s 60(11) was not questioned in the court of first instance, or in the Court I a quo, or (so we are told) in the petition to the Chief Justice. Furthermore, it does not feature as a ground of appeal in the appellant's notice dated 21 May 1998. Mr Rossouw, who appears for the State, intimated in his heads of argument that he has been attempting to obtain an affidavit from the Minister of Justice in support of a limitation of the appellant's rights (s J 36 of the Constitution) if indeed there is such a limitation. Counsel for the

Comrie J

appellant conceded that a postponement of about two weeks might be required for this purpose. The position calls to mind A the remarks of Van Dijkhorst J in Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 849A - B:

'Dit is myns insiens vir die behoorlike ordening van die praktyk absoluut noodsaaklik dat konstitusionele punte nie deur advokate as laaste debatspunt uit die mou geskud word nie maar pertinent in die stukke as geskilpunt geopper word sodat dit volledig uitgepluis kan word deur die B partye ten einde die Hof in staat te stel om dit behoorlik te bereg. Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) op 107H.'

I shall return to the constitutional challenge later in this judgment. C

The factual basis for the opposition to bail is to be found in the first instance in the affidavit of Inspector Spangenberg, the investigating officer. He states:

'20.

Daar is getuienis dat mev Tshabalala op 3/06/98 vir twee getuies gesê het dat hul moet sê dat hul haar die Sondagoggend laas gesien het, wat nie die waarheid sou wees nie. D

'21.

Voorts is daar ook getuienis dat mev Tshabalala probeer vasstel het wat 'n bepaalde getuie vir die SAPD gesê het en later ook 'n storie versprei het dat die getuie 'n "impimpi" is. By geleentheid sou mev Tshabalala met 'n verskuilde gesig in die woonbuurt in 'n motor saam met twee mans rondgery het op soek na die getuie. Die getuie het ook meerdere doodsdreigemente per telefoon ontvang. Daar was ook 'n rapport dat drie mans deur Xolani Hobongwana opdrag gegee is om die getuie te dood en dat hul deur mev Tshabalala vergoed moes E word. Een van die "aanvallers" het die getuie egter geken en geweier om die opdrag uit te voer.

'22.

Mev Tshabalala sou ook vir 'n sleutelgetuie aangesê het om nie teen Xolani Hobongwana te getuig nie en dat sy vir hom geld sou gee. Sy het ook vir hom gesê dat hy hom in Johannesburg moes gaan vestig. Mev Tshabalala het hom ook by geleentheid aangerand deur F hom te klap en aan hom gevra hoekom "pimp" hy vir Xolani Hobongwana.'

I immediately point out that the allegations in paras 20-22 were at that stage hearsay. Though hearsay evidence is admissible in a bail application, it will often carry less weight than if the persons having personal knowledge of the facts G were themselves to testify. In paras 23 and 24 Spangenberg deals with Sipho, the alibi witness mentioned earlier. Sipho has apparently had a change of...