JUDGMENT IN BAIL APPLICATION

IN THE REGIONAL DIVISION OF GAUTENG HELD AT BENONI CASE NO SH 30/2010 THE STATE Versus DS Ngobese & Others JUDGMENT IN BAIL APPLICATION The applicants are Dennis Skhumbuzo Ngobese, a male aged 37 first applicant, Alfred Mnisi, a male aged 43 - second applicant, and Khulekani Sydney Ngobese aged 39 third applicant. The first was arrested on the 8 th January 2010 while the other two were arrested on the 6 th January 2010. The three applicants brought the application to be released on bail in terms of section 60 of Act 51 of 1977 on the 1 st, 19 th and on the 24 th of February 2010. Throughout the proceedings, the applicants were assisted by advocates; the first and the third applicant by Adv. Jwaqa and the second applicant by Adv. Wyngaarv. The State indicated at the beginning of the application that the charge against the applicants is one of conspiracy to commit murder which falls under Schedule 1 of the Criminal Procedure Act. It was further averred by the State that the charge would fall within Schedule 5 in respect of the second applicant due 1

to his previous conviction. The defence for all the applicants conceded all these averments by the State. Section 60 (1) of Act 51 of 1977 provides: (a) An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit. Section 60 (11) provides, Notwithstanding any provision of this Act, where an accused is charged with an offence referred to- (b) in Schedule 5, but not in Schedule 6, 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 been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release. In the light of the decision by the Constitutional Court in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (7) BCLR 771 (CC), and the very wording in section 60 of Act 51 of 1977; that the State bears the onus to show that the interests of justice do not permit the release of the first and the third applicant while the second applicant bears the onus to show that the interests of justice permit his release on bail. In opposing the application the State led evidence first through the investigating officer, Dijenga Mojalefa, a Superintendent in the SAPS. Right from the outset of the application, counsel for applicant 1 and 3 opposed the leading of evidence on merits of another case from which the present case emanates, saying the other case is irrelevant to the application in casu. The court allowed the said evidence to be led. This is because as a general rule, in bail applications, the rules of evidence are not very strict, meaning evidence that would normally be 2

inadmissible during trial (say hearsay), for purposes of bail application, such evidence would be admissible. The reason for this was elaborated by Acting Judge Pakade when he said The reason for relaxing the hearsay rule in a bail application is that it is essentially a unique judicial process. The enquiry is not really concerned with the question of the guilt which is the task of the trial court. The court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The focus is really to decide whether the interests of justice permit the release of the accused pending trial see S v Gubeka & others [2005] JOL 15720 (Tk). This approach was also adopted in S v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC). The court is of a view that even if it was for trial purposes, the defence would not have a leg to stand on in arguing that evidence of the initial case that brought about the current case is irrelevant since the relevance of such case is fully exposed in the objection itself. The basis for the State to oppose the release of the applicants on bail is on the merits of the case itself which are as follows: Applicant no. 1 is an accused in another matter in which he together with another suspect; are facing a charge of murder and armed robbery. The complainant in that matter is a relative of applicant no. 1 and it appears applicant no. 1 was very instrumental to the crimes being committed in that he orchestrated the commission of these crimes. It also appears as if the State has a strong case against applicant no. 1 in that matter. Applicant no. 1 applied for bail in the said matter in the Gauteng Regional Court Benoni (Mr. Cox presiding) and bail was refused. Prior to the hearing of the bail application, applicant no. 1 was made aware that the investigating officer in that matter intended opposing his application for bail. He then contacted a friend of his who happened to be a police officer by way of telephone, calling from prison Modderbee. He asked him to assist him in getting hit men who would assist him in killing the said investigating officer, offering R60 000 for the job. The said friend immediately contacted the provincial SAPS and to inform them of this and a case was also opened. With the help of the provincial police, a trap was set up in which two members of the SAPS would 3

be presented as if they are the hit men. Permission was also obtained from the office DPP in terms of section 252A of the Criminal Procedure Act. The said hit men went to visit the first applicant in prison while bugged with recording (visual and audio) devices attached to them. Applicant no. 1 proceeded to confirm the offer to the hit men who pretended to be willing to do the job for the amount offered. Applicant no. 1 went on to offer his motor vehicle which the hit men could hold as security until he was out of prison so he could sttle the payment. The hit men indicated they work strictly on cash and needed the deposit of half the amount (R30 000) before executing the job. Applicant needed the job to be finalised before the 6 th January 2010 since that was the date set for bail application in that matter. Applicant no. 1 undertook to see to it that the hit men are catered for so they could do the job. Applicant no. 1 then sent for applicant no. 2 a business partner and another business partner named Solly to come and see him which they did. Solly was contacted and he also came to see applicant no. 1 here in court cells Benoni Magistrate Court. It was on the 6 th January 2010. The hit men pretended to applicant no. 1 that they had kidnapped the investigating officer who had to be killed but that they await the payment before executing him. The investigating officer was also advised not to come to court. Solly was not persuaded that such a lot of money has to be paid. He was not interested. He walked away. Applicant no. 2 pleaded with the hit men to wait as he went to consult the family members now that Solly was not interested in the arrangement. A little later applicant no. 2 came in the company of applicant no. 3 a relative of applicant no. 1 (a brother) and a prison warder in the Department of Correctional Services and got into the car the hit men were waiting in, just outside the courtroom Benoni. Applicant no 3 indicated he knew the whole 4

arrangement and went on to tell the hit men to kill that person. Applicant no. 3 first pleaded with the hit men that they should accept R20 000 which they finally agreed to. Money was handed out to the hit men; that s when the police pounced and arrested applicant no. 2 and 3 and also pretended to be arresting the hit men. Money was later counted at the police station and was found to be R15 000. Applicant no. 3 not knowing that the trap was in operation then advised all the others (including the hit men ) that if they are asked what the money was for, they should indicate that it was for the services of a lawyer. The investigating officer indicated that although the accused persons have fixed addresses, they were dangerous to the community and the witnesses would not be safe if bail was granted. He also feared for his own safety. He was of the view that bail should not be granted. Before cross examination could commence, both counsels applied to the court for copies of the video recordings from the State saying after watching they would decide if bail application would have to proceed or if they would abandon the application. The State furnished the copies of DVDs and bail application proceeded on a later date. Cross examination by the counsel for applicant no. 1 and 3 focused much on the legal definition of conspiracy. Court was tolerant of a number of these questions until there was a lot of legal argument in the questions at which stage the counsel was advised to reserve the argument for address but to focus on cross examination. Nothing much or dispute came out from the cross examination. Cross examination by counsel for applicant no. 2 also focused on the issues outside the merits of the case such as how far the investigations were and to question why applicant no. 1 was not arrested immediately when he insisted on demanding the killing of the investigating officer, suggesting that going 5

further (demanding a deposit in cash) was going beyond the mandate. Counsel also put it to this witness that he has no evidence to show there was direct communication between applicant no. 1 and applicant 2 and 3. In essence the defence counsels after watching the video footage did not have any tangible dispute on merits of the case especially the parts which were recorded in a video. Case for the State was closed. Applicant no. 1 was called to testify by his counsel in support of his application. He testified that he was a 37 year old father of three who runs a business in transportation. He also has 10 employees in the business. His income from the said business was about R25 000 per month. He is a South African citizen. He stays with his family at a given address in Benoni and that prior to that he had stayed with his parents in Wattville. He testified that he does not know the witnesses for the State, he has no property outside RSA and he has no travelling passport. He has no intentions to relocate. When asked by his counsel on whether he had conspired to kill any person, the court first warned him that he was not obliged to answer incriminating questions or any question on merits of the case and that responses he may give in respect of the merits of the case may be used in a later trial See S v Dlamini 1999 (4) SA 623 (CC) at 679E F and S v Nzima and Another 2001 (2) SACR 354 (C). Accused opted not to answer any question in respect of merits of the case. He also opted not to disclose how he would plead to the charge of murder and robbery in the other matter pending against him. When it was put to him by counsel for applicant no. 2 that applicant no. 2 would deny having arranged with him to kill any person, he opted not to answer such a question. 6

During cross examination by the State, applicant no. 1 would not answer if he told the other court in his bid for bail that he earns R15 000 per month, saying he could not answer the question. Case for applicant no. 1 was closed without further evidence. Applicant no. 2 was called to testify by his counsel in support of his application. He testified that he was a married father of 7 kids and husband of two wives who owns three houses including the one he had been occupying for the past 16 years. He is a South African citizen. He is 43 years old. His other wife occupies one of the three houses while the third one was unoccupied. All his wives were unemployed while one suffered from High Blood Pressure. He is also in the transport business from which he earns about R15 000 per month. He also has 8 employees in his business which cannot go ahead in his absence. He also testified that he has a previous conviction of murder for which he was sentenced to 15 years imprisonment in 2001. He was however released on bail pending appeal. The appeal was dismissed by the Northern Gauteng High Court in 2005 and his bail was extended as leave to appeal to the Supreme Court of Appeal was granted. He currently awaits the date for his appeal to be heard. He also opted not to testify on the merits of the case. Counsel for applicant no. 1 and 3 put it to him that applicant no. 1 and 3 did not conspire with him to commit murder to which he agreed. Case for the second applicant was closed without any further evidence. 7

An affidavit by applicant no. 3 was read out by his counsel in support of his application for bail. According to the affidavit, he is a 39 years old employee of the Department of Correctional Services who has been serving as such for the past 16 years. He stays in his house at a given address in Leachville and he has been residing there for the past 4 years. He is a South African citizen. He does not possess a travelling passport. He is a married father of a 12 year old child, and has been married for the duration of the same period as his child s age. He went on to make undertakings not to interfere with the police investigations in this matter. Case for the third applicant was closed without any further evidence. While the positions of the three applicants are different, the submissions advanced on their behalves were very similar except were specifically indicated. It was submitted by both counsels that there could not be conspiracy to commit murder in respect of each of the applicants: Conspiracy requires the meeting of minds agreement (so it was argued) and that where the State does not have evidence of the parties agreeing to commit a crime, there cannot be conspiracy to commit a crime CR Snyman Criminal Law 4 th Ed, 2002 p. 292-293 was quoted as an authority. The opinion by CR Snyman was also submitted as an authority when he wrote [t]here is no conspiracy if one of the two parties only pretends to agree but in fact secretly intends to inform the police of the other party s plans so that she may be apprehended (R v Harris 1927 NPD 330). A trap can therefore not be convicted of conspiracy; what is more, the other party who seriously wishes to agree to commit a crime cannot be convicted of conspiracy either, because there was no true agreement between at least two persons to commit a crime. [My emphasis] - CR Snyman supra at p. 293. 8

Due to these, it was submitted that it would be in the interests of justice to have the applicants released on bail. The State submitted that this court was not a trial court and that the matter was before it only for bail application and that merits should be left for the trial court. It was submitted that the applicants were dangerous to the community and do not value human life. It was submitted that if the first applicant could conspire to have applicant no. 2 and 3 help him to commit murder from inside the prison, it would be much easier to do so when released. It was submitted that it was not in the interests of justice to have the applicants released on bail. The determination of interests of justice is detailed as follows in Act 51 of 1977 Section 60 (4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: (a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; (b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or (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; or (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; (e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; 9

The major aspect this court will focus on is whether what the accused are alleged to have done is a crime in our legal system and whether the State has a strong case against the applicants. The reason for this approach is that the court is of the view that presuming that the allegations against the accused are can be classified as a crime, and that things happened as alleged by the State, the question on whether it would be in the interests of justice for the accused to be released on bail would be easy to deal with in the light of the provisions of section 60 (4) of Act 51 of 1977. Are the allegations against the applicants classified as a crime in our legal system? CR Snyman (supra) is the only authority advanced in suggesting that the allegations cannot be interpreted as conspiracy to commit a crime. This court is of the view that CR Snyman has been quoted out of context. It is common cause that the crime of conspiracy (to commit a crime) can be committed by two or more persons. The circumstances CR Snyman refers to are when a person thinks he is conspiring to commit a crime with another while this second person is simply pretending to agree while he in reality intends reporting the matter to the police. It is obvious the trap (a person pretending to conspire) cannot be convicted of conspiracy since he is not genuinely in agreement. This leaves the other person conspiring alone which is an impossibility. What CR Snyman does not answer is a question on whether this means the person thinking he is conspiring to commit a crime cannot be convicted simply because his partner in the commission of a crime was a trap. The silence by CR Snyman in this question is deafening in view of the fact that the authority he refers to, answers the question. It is interesting that J Burchell & J Milton Principles of Criminal Law 2 nd Ed, 1997 p. 456, quoting the same authorities as CR Snyman (supra) do not share the sentiments by Snyman. In fact the very case of 10

R v Harris (supra) involves an accused (a police officer) who tells the public prosecutor to approach a third parties to obtain a payment which would be a reward for dropping the criminal charges against them. The prosecutor who pretended to agree while he intended informing the police could not be convicted of conspiracy. The High Court sitting as the court of appeal refused to let the accused go free for a mere reason that there was no conspiracy since the prosecutor acted as a trap. The High Court (the NPD) was of the view that the accused had all the required intention for conspiracy and did everything expected from a party to conspiracy just falling short of a genuine partner to the said conspiracy. The High Court convicted the accused of attempt to commit conspiracy it is submitted, correctly so. For Snyman to say an accused in that situation cannot be convicted of conspiracy citing the Harris decision as an authority thereto is to tell the half truth. This is because yes it is true; there cannot be such a conviction. But there would be another conviction which he opted not to tell. In my view, the gist of this conclusion is simple: Conspiracy is committed by 2 or more people. If in two people (as was the case in Harris case supra), it is later found the other one was a trap, the other one cannot be convicted of conspiracy since there would not be the minimum number required which is two persons for conspiracy to be. It would have been a different picture if a bigger group was involved in conspiracy. If 20 people agree to commit a crime and is transpires that just one of them was pretending to agree, it would not nullify the whole arrangement to the extent that the other people (19) would be convicted only of attempted conspiracy. There would be conspiracy to commit a crime even when this bigger group decides to commit a crime while one of them decides to act as a trap (to inform the police) irrespective of the fact that the party pretending to agree has to play a crucial role to the extent that his withdrawal would result in the commission of a crime being impossible. 11

Since this 1927 decision there has been few changes. Then an accused could be convicted of conspiracy to commit a crime under common law. Conspiracy to commit a crime is now a statutory crime - see section 18 (2) (a) of Act of Act 17 of 1956 (the Riotous Assemblies Act). The legislature has since then taken care of the frustration the law enforcement officers encountered in the Harris matter. Since 1956, an accused in the situation of Mr. Harris (and indeed the three applicants before court) would not have to be convicted of attempted conspiracy as was the case in R v Harris. He would be guilty of contravening section 18 (2) (b) of Act 17 of 1956. Section 18 of the said Act provides as follows: 18 Attempt, conspiracy and inducing another person to commit offence (1) Any person who attempts to commit any offence against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. (2) Any person who- (a) (b) conspires with any other person to aid or procure the commission of or to commit; or incites, instigates, commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable [my emphasis]. In terms of this Act, one person can still be guilty of a crime without a partner with whom to agree or accede to his initiatives to have a crime committed. In terms of this, a conviction can follow even is a trap 12

situation (though not against the trap). A number of legal writers share this view: see Burchell & Milton (supra) p. 456, JC de Wet & HL Swanepoel Die Suid Afrikaanse Strafreg 4 th Ed, 1985 p 195 and Glanville Williams, Textbook of Criminal Law 2 nd Ed, 1983 p 671 ( the accused person is still guilty of conspiring with another to do what for him is a crime ). However since there are 3 suspects still involved even after the withdrawal of the two traps, I am of the view that conspiracy would still stand. To suggest that even if it is presumed that the facts happened as testified by the investigating officer, applicant 2 and 3 would have to walk free because hit men were traps would make a mockery of our judicial system. What if instead of cash, the third applicant brought a firearm with which the investigating officer was to be murdered? If the argument by the counsels was to stand, the accused would not be convicted even when admitting all the allegations averred by the State. I do not agree. Does the State have a strong case against the applicants? It was also argued on behalf of the applicants that lack of evidence by the State on direct evidence linking the first applicant with the rest, or an indication that they had express / direct communication is indicative that there cannot be any conspiracy between them. The agreement between the conspirators need not be express or explicit. It can also be tacit. Two or more persons can be convicted of conspiracy even without evidence of express agreement. Such concurrence need not necessarily be by way of explicit, spoken words, for the agreement to commit a crime, as any other agreement can be arrived at tacitly and by conduct R v S 1959 (1) SA 680 (C) at 683. 13

It is important to note that: 1. Applicant 1 faces a charge of murder and armed robbery in which the State has a strong case against him. 2. He opted not to tell the court how he would plead to the charges in that case. 3. He also opted not to respond to allegations of conspiracy in this matter, choosing not to divulge his role and guilt in the matter. 4. The second and third applicants have strong links to applicant one, being a business partner and a brother. 5. There is money that was paid (R15 000) which was paid by applicant 3 to the hit men for the job to be done. 6. Most of the allegations against all the applicants have been recorded in a video, a copy of which has been availed to the defence counsels. 7. No tangible dispute was raised in cross examination regarding the video footage. 8. Applicant no. 1 and 2 who opted to testify under oath, chose not to respond to allegations levelled against them, whereas applicant no. 3 opted not to testify, rather handing up an affidavit. All these tabulated points are indicative of a strong case that the applicants have to answer. They are indicative of clear agreement (express or otherwise) between the three parties. R15 000 is a lot of money that could not just be given to two strangers unless with clear mandate on what they were to do and in this case, to kill the investigating officer. The court finds the argument that the defence could not 14

continue disputing the contents of the video because the investigating officer said he could not testify on the video footage to be rather feeble. It is well known that questions raised in cross examination are not meant to satisfy the witness responding thereto, but rather to show the court what is being disputed and what the true picture is. The allegations against the applicants are very serious and a cause of grievous concern to every law enforcement officer and every law abiding South African. If it is to be accepted that the State has a strong case against the applicants, the case is so unique that it portrays a clear picture on how dangerous the applicants can be to the law enforcement agencies and the community at large. Applicant no. 1 was facing very serious charges. He has shown a tendency to solve a crime with a crime. From the time it appears he defrauded R70 000 from his cousin, he tried solving it with robbery which also resulted in murder of a 6 year old. When faced with that he needed the police officer to be murdered. He was able to pioneer that from the thick walls of a prison to the point that R15 000 was paid to the people believed would kill the police officer. He now pledges his willingness to keep reporting at the police station on as a condition for his bail. The question is how would that help or curtail him from plotting further crimes in accordance with his tendency if the same could not help when he was fulltime in detention in prison? For the second applicant to be so determined to see to it that the investigation officer is executed even as Solly walked away, pleading with the hit men to wait as he goes to get fresh mandate from the family, show how desperate he was to have the investigating officer killed. Equally, for the third applicant to be willing to raise so much money way above his monthly income as a prison warder shows the same determination. It shows how all the applicants do not value human lives. It shows how the applicants regard their own lives to be more important than other lives. It could be that the applicants have families 15

to look after. But so does the investigating officer who they wanted killed. At least as for them (applicants) they know they are separated from their families for their own deeds. But the investigating officer had to be separated for good for doing his job as a police officer. How dangerous the applicants can be to the witnesses and other officers handling this case cannot be over emphasised. The fear the investigating officer has cannot be regarded as being empty or baseless fear. The court is not dealing with a trial and is well aware of the approach adopted in S v Mpulampula 2007 (2) SACR 133 (E), when it cautioned against delving too deep into the merits of the case as if the matter is before the court for trial purposes. The court is also well aware of the fact that should the applicant adduce strong and independent evidence pointing to his innocence, that could qualify point to interests of justice qualifying or permitting their release S v Mohamed 1999 (2) SACR 507 (C). The need to get a little deep in this matter was also called by the suggestion that applicants (especially 2 and 3) cannot be convicted of any crime even if the facts were to be admitted as they are. To suggest that presuming the State case is as it was presented, and that irrespective of the merits of the case, the applicants should be granted bail would be a misdirection on the part of this court. It would be attaching no value not just to human life, but to lives of law enforcement officers such as police officers. This could easily lead to calls in the media and press for shoot to kill which in the long run leaves even innocent lives lost. The desperation on the part of the police loosing colleagues as easy as in nearly came about in this case is understood by this court and it will do what seems to be appropriate to try and restore dignity in lives of law enforcement agencies. In the light of the strong case for the State, how dangerous the applicants proved to be, the likelihood of that the witnesses would be intimidated if not killed and how far they were willing to go to see to it that 16

the crime of murder is committed, I am not convinced that it would be in the interests of justice for the three applicants to be released on bail. Bail is therefore refused in respect of all the three applicants. TV Ratshibvumo Acting Regional Magistrate - Benoni 03 March 2010 17