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[2018] ZAWCHC 43
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Nogqala v S (A200/17) [2018] ZAWCHC 43 (9 March 2018)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
CASE
NO: A200/17
In
the matter between:
HEADMAN
NOGQALA APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
DELIVERED: 09 MARCH 2018
MANTAME,J
[1]
Appellant appeals against the refusal of bail by the Athlone
Magistrates Court on 13 May 2016.
[2]
Appellant is currently facing charges of robbery with aggravating
circumstances, possession of unlicensed firearm and unlawful
possession of ammunition. It is therefore common cause that robbery
with aggravating circumstances falls under Schedule 6 offences.
[3]
The background facts according to appellant can be summarised as
follows - On 16 January 2016 appellant and his co-accused in
the
court a
quo
boarded a taxi at Klipfontein Road and paid
their normal fee. In the middle of the journey, the driver
accelerated
and he drove the vehicle fast. Shortly thereafter the gunshots were
fired. They ducked the bullets while the motor vehicle
was in motion.
The driver jumped out of the vehicle and ran away. The taxi went out
of control and bumped into the wall. Both appellant
and his
co-accused in the court a
quo
were arrested by the police
immediately thereafter.
[4]
On the other hand, the investigating officer, Constable Mawande
Nzilana testified that indeed the appellant and his co-accused
in the
court a
quo
boarded the taxi. There were no other
passengers in the taxi. As the complainant (who was the driver of the
taxi) approached the
traffic lights between Jakes Gerwel and
Klipfontein Road, the light changed to red and the taxi came to a
stop. Appellant and his
co accused pointed him with a firearm
and demanded that he get out of the vehicle. As complainant was in.
shock, he looked
back and waded off the firearm with his hand. The
firearm fell off. One of the accused got hold of the firearm and the
other accused
was pointing a firearm at the
guardjie
- as he
is commonly known, who worked as a conductor in this taxi and he
ordered him to get out of the vehicle. While the other
accused was
busy with the driver, he managed to get hold of the keys from the
driver and they were both ordered out of the vehicle.
[5]
One of the accused took over the vehicle and they drove to the
direction of Manenberg. The complainant managed in the meantime
to
get a lift to Manenberg Police Station to report the matter where he
was re-directed to Athlone Police Station where the incident
took
place.
[6]
At that time, the complainant had already called the owner of the
vehicle who immediately called the tracker company to track
his
vehicle. While they were busy at Athlone Police Station, they were
advised by the tracker company that a police vehicle is
following the
taxi and they were entering Khayelitsha. The flying squad police gave
a chase and the people inside the taxi shot
at the police. The police
retaliated with the shots. Apparently the driver lost control and the
taxi vehicle ended up in somebody's
yard and both accused jumped out
of the vehicle, but unfortunately they were caught by the police.
[7]
When complainant and the owner of the vehicle finished giving
statements at Athlone Police Station, they drove to the scene.
Complainant confirmed that the people who were arrested were the same
people who earlier on robbed him.
[8]
The court a
quo
observed that at the hearing of the bail
application, in the court a
quo
the owner of the taxi sold his
vehicle and did not want to give a statement to the police in the
matter. Also, the owner of the
house in which the taxi bumped the
wall is not interested in furnishing the statement to the police. And
that, the complainant's
assistant or the
guardjie,
is
untraceable as they change drivers almost on a daily basis.
[9]
B
oth the state and the
defence agreed in the court a
quo
that the bail application
resorted under
Section 60(11)(a)
of the
Criminal Procedure Act 51 of
1977
("the
CPA"),
therefore the accused persons in
the court a
quo
had to satisfy the court that exceptional
circumstances exist which in the interest of justice permit their
release. It was the
magistrate's conclusion that
"The
evidence or the version of the accused is untested, they were not
taken under cross-examination as they handed in sworn
statements.
Everything taken into account the court is satisfied that the State
has a strong
case
against the accused. Satisfied that the
accused failed to show that there are exceptional circumstances
on which the bail
should be granted in this instance. Bail is refused
for both the accused."
[10]
It
was appellant's
submission that his co-accused was granted bail in the Wynberg
Magistrate Court with strict bail conditions. The
appellant has been
in custody since 16 January 2016. Exceptional circumstances do exist
for the granting of bail to the appellant.
Reference was made
to
Mooi vs The State (162/12)
[2012]
ZASCA
79
(30 May
2012)
-where Snyders JA concluded that the delay by the State in
concluding its case taken together with deduced weakness of State's
case
constituted. exceptional circumstances which in the interest of
justice permit the release of accused.
[11]
Respondent opposed this bail application on the basis that appellant
admitted to having an attempted murder that is pending,
and was
released on bail in that matter when he was arrested in the present
matter. When the court a
quo
refused bail, it took into
account all these factors. The granting of bail in the current matter
will jeopardise the objectives
or proper functioning of the criminal
justice system, including the bail system. The magistrate was
justified in refusing bail.
[12]
Section 60(4)
of the CPA states as follows:-
"The interest 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;
or
(b)
where there
is a
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; or
(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."
[13]
The magistrate in the court a
quo
refused bail on the
basis that the state has a strong case against the accused. The
magistrate did not refer to any of the abovementioned
reasons in
refusing bail. However, the magistrate noted that the appellant was a
married 39 year old man, has 3 children and resides
in Khayelitsha.
He was employed as a general worker and earned between R300 - R500
per week. Nothing turned to his personal circumstances
in the
magistrate's findings.
[14]
Appellant has been in custody for over two (2) years, and there has
been no indication that the trial in the court a
quo
would be
finalised soon. The inordinate delay in finalising this trial has not
been explained convincingly during argument. It could
be arguable
that the appllant has a pending attempted murder charge at Bellville
Regional Court and that the inordinate delay was
not due to the
state's fault. In my view, it cannot be a bar in his
granting of bail, more especially
after he
personally disclosed this pending matter in the court a
quo.
There
has not been an indication that should he be granted bail, he will
evade trial.
[15]
Having considered the facts surrounding the appellant's arrest and
his lengthy period of detention, I am satisfied that exceptional
circumstances within the meaning of
Section 60(11)(a)
of the CPA
justifies the release of the appellant. The delay in the finalisation
of trial; the amount of time spent by the appellant
as an awaiting
trial prisoner and the unavailability of some of the state witnesses
to give evidence are justifiable enough to
release the appellant on
bail. In light of the above, the interests of justice permit the
release of the appellant.
[16]
In the result, I grant this order;
16.1
The appeal is upheld;
16.2
The order by the magistrate is set aside and substituted as follows:-
16.2.1
The appellant is released on bail in the amount of R5000.00 (five
thousand rand) subject to the following conditions:
16.2.1.1
That appellant
shall report at Site B, Police Station Khayelitsha
every Monday, Wednesday and Friday between 07:00 and 19:00.
16.2.1.2
That should
appellant change his residential address, he must inform
the investigating officer Constable Mawande Nzilana or any other
investigating
officer available accordingly and furnish his new
address.
16.2.1.3
That appellant
should attend trial on each date the matter is
postponed to and remain in attendance until excused by the court.
________________________
MNTAME
J
WESTERN
CAPE HIGH COURT