In the matter between:
Coram: Hon. Hlajoane J
Date Hearing: 27th February, 2013.
Date of Judgment: 15th March, 2013.
Summary
Appeal against the refusal by the magistrate to grant bail – Prosecutor leading evidence of complainant in objecting to the granting of bail – Section 28(1) (a) & (b) of Sexual Offences Act 3 of 2003 allowing for such evidence or information from complainant - Appeal dismissed.
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Criminal Procedure and Evidence Act (CP&E)
Sexual Offences Act 3 of 2003
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[1] Appellant appeared before the Magistrate’s Court Thaba-Tseka charged with the offence of contravening Section 3 (2) of Sexual Offences Act No.3 of 2003[1]. He applied for bail and the prosecutor in objecting to the application led evidence of the complainant. The complainant gave evidence under oath and was cross examination by the appellant. The Court denied the appellant bail.
[2] The appellant has appealed against the decision by the magistrate in terms of Section 108 of the Criminal Procedure and Evidence Act (CP&E) Act[2].
[3] His grounds of appeal being that the bail proceedings were illegal and were not supported by any law. That bail was refused on the ground which appellant considers as an alien and unknown ground, of a thread by the appellant to beat up the complainant.
[4] His other grounds being that, the Court, since the incarceration of appellant has mero motu failed to apply its mind to appellant’s case and to apply the Speedy Trial Act to appellant’s case. And that the Court failed to objectively apply its mind to the appellant’s case.
[5] In argument counsel for the appellant indicated that the Court has not shown accused’s reaction when his rights were explained to him. This has clearly not been one of his grounds for appeal. Besides, the deeper end of considering whether or not accused’s rights were fully explained to him would best be gone into during the time that he would be asked to plead.
[6] It was further argued that in terms of section 28 (1)[3] complainant was only to attend the proceedings and not to give evidence because if that was the case the statute could have clearly said so. Counsel argued further that there is nowhere where the law provides that complainant should advise the court on whether to admit accused to bail.
[7] The reading of section 28 (1) (a) is as follows:
“Rights of complainant in bail application
28(1) A complainant shall have a right to-
(a)Attend any proceedings where the question considered is whether an accused who is in custody is to be released on bail or, - - - - - -
(b)Request the prosecutor in the proceedings to present any information or evidence to the Court that may be relevant to any question under consideration by the Court in the proceedings.”
[8] Section 28 (1) (a) and (b) makes mention not only of information but also evidence to the Court. It follows therefore that the prosecutor has been given an option of either getting information from the complainant or evidence from the complainant. And evidence would only be from the complainant and for it to be admissible or have evidential value has to be under oath.
[9] Besides, at the stage at the trial Court the accused was already represented by counsel who did not object when the prosecutor led the evidence of the complainant but went further and cross examined the complainant.
[10] Appellant’s counsel in his heads has also argued that nowhere has the law provided for the presence of the complainant in Court in a bail application. I must say that is very wrong as the reading of the section clearly shows that complainant has a right to attend the proceedings for bail application.
[11] On the ground of what appellant’s counsel term as alien ground, respondent’s counsel responded by showing that interference with witnesses can cover a wide range and the description of the kind of acts which amount to interference are varied and numerous. That it is for the Court to decide considering the circumstances of each case if the interference was aimed at impending or perverting the course of justice and that if it is so found it would be a justifiable reason to limit the right to the liberty of the accused.
[12] In the present case the complainant was allowed to give evidence in the consideration for bail in respect of the appellant. Complainant in her evidence showed that the appellant had threatened to beat her should she report about the rape. The case is before Court precisely because the complainant has reported about the rape by the appellant. She therefore feared that the accused was going to interfere with her freedom as he did at the time stayed closer to where the complainant stayed.
[13] As correctly said by respondent’s counsel, the Court in exercise of its discretion decided to deny the appellant bail on reasons shown above.
[14] Bail was refused on good grounds shown in the judgment by the magistrate and this Court is not going to interfere with the magistrate’s exercise of his judicial discretion.
[15] Appeal to refusal by the magistrate to grant appellant bail is thus dismissed. The record has shown that the date for the hearing of the matter has already been set.
A. M. HLAJOANE
JUDGE
For Appellant: Mr Fosa
For Respondent: Mr Tsoeunyane
[1]Act 3 of 2003
[2]Act No.7 of 1981
[3]Sexual Offences Act No.3 of 2003
Kids Nike Cortez
