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[2021] ZAWCHC 96
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Yanta and Another v S (A71/21, A43/21) [2021] ZAWCHC 96 (14 May 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
High
Court Ref No: A71/21 and A43/21
Magistrate
Serial Number: 16/500/2020
In
the matter between:
SITHEMBELE
YANTA
First Appellant
LUDWE
MGWELANA
Second Appellant
And
THE
STATE
Respondent
JUDGMENT ON BAIL
APPEAL
LEKHULENI
AJ
INTRODUCTION
[1]
This is an appeal against the refusal of bail against the two
appellants.
On
11 December 2020 the two appellants brought a formal application for
bail in the Cape Town magistrate’s court and the said
court
refused them. They now appeal against that decision in terms of s
65(1)(a) of the Criminal Procedure Act 51 of 1977
(“the
CPA”).
Both appellants, in the magistrate’s court, were legally
represented. The first appellant was legal represented by Advocate
Ngoza and the second appellant was represented by Mr Dunga an
admitted attorney. In this court, Mr Mafereka appeared for
the
first appellant and Mr Njeza appeared for the second appellant while
the respondent was represented by Mr Gertse. The first
appellant
lodged his appeal first and the second appellant followed sometime
thereafter. As a consequence thereof, the parties
agreed to
consolidate the two appeals as they arise from the same facts.
[2]
During the bail proceedings, the appellants did not testify. Instead,
both appellants
filed affidavits in support of their applications.
In their affidavits the appellants categorically denied their
involvement
in the crimes that they were charged with. The
respondent opposed the bail application.
[3]
In its further opposition of the bail appeal, Mr Gertse submitted on
behalf of the
Respondent that the court
a quo
was correct when
it refused to grant the appellants bail as both appellants faced
serious charges; there is overwhelming evidence
linking the
appellants to the offences committed and that they failed to show
exceptional circumstances for their release on bail,
while Mr Njeza
and Mr Mafereka held a contrary view. The respondent
highlighted the following that; both appellants are
facing two counts
of robbery with aggravating circumstances; one count of murder read
with the provisions of
section 51(1)(a)
of the
Criminal Law Amendment
Act 105 of 1997
; one count of possession of an unlicensed firearm and
one count of possession of ammunition. It is therefore common cause
that
the charges that the appellants face are referred to in Schedule
6 of the CPA. It then follows that the bar for granting bail in
the
crimes listed thereat is lifted a bit higher by the legislature.
[4]
Detective Sergeant Luvuyo Maki
(“Detective Sergeant Maki”)
,
the investigating officer in this matter also filed a comprehensive
affidavit on behalf of the respondent opposing the granting
of bail.
In his affidavit, he detailed the extent of both appellants’
alleged involvement in these crimes. The
facts will then be
summarised below.
BACKGROUND
FACTS
[5]
Detective Sergeant Maki’s affidavit demonstrated that he based
his evidence
on,
inter alia,
the contents of the statements he
obtained from some of the witnesses. He briefly stated that on
22 February 2020, eight
African men entered the premises of ORMS Pro
Shop in Roeland Street, Cape Town driving two vehicles namely, a
White Polo and a
Silver Grey Toyota Quest. According to an employee
of ORMS, while he was busy assisting clients, he noticed two African
males entering
the store. One of them took out a firearm cocked it
and pointed it towards him and instructed him to lie down. The
suspect then
started to remove cameras from the store. While the two
suspects were still in the store the employees in the shop heard
gunshots
from outside. After the suspects collected the loot from the
shop, they left the store. After the shooting, the suspects left the
scene. A video footage from outside the ORMS shop shows the robbers
arriving in two vehicles and the first appellant as the driver
of the
silver Toyota and he remained in the vehicle.
[6]
In his affidavit, Sergeant Maki indicated that he dealt with the
first appellant in
a previous matter and he knows him very well. He
received a video footage from ORMS and he identified the first
appellant. He had
knowledge of the first appellant ‘s cell
phone number and according to the first appellant’s cell phone
data, the first
appellant was at Roeland Street at the address of
ORMS (the crime scene) on the day and at the time the incident
happened. He also
stated that the second appellant was positively
identified by an employee of ORMS shop in a photo identity parade as
being in the
store when the incident occurred. According to him, the
witness (an employee) identified the second appellant as the one who
pulled
out the firearm and cocked it and said that everyone must lie
down. The second appellant’s finger prints were also found in
the vehicle that was used in the commission of the offence.
GROUNDS
FOR THE BAIL APPEAL
[7]
The grounds of appeal as contained in the notice of appeal for both
appellants dated
18 February 2020 and 16 March 2020 respectively are
essentially that the magistrate failed to attach any weight or
sufficient weight
to the appellant’s application in that:
7.1
The appellants were not flight risk;
7.2
There were no facts placed before court that the appellants would not
stand trial if they
were released on bail or that if released on bail
they would commit a schedule 1 offence;
7.3
That the magistrate erred in failing to find that the tenuous nature
of the state case was
such that it provided no incentive for the
appellants to avoid trial;
7.4
There were no facts placed before court suggesting that the release
of the appellants on
bail might endanger the safety of the public;
7.5
The appellants aver that the magistrate erred in denying them bail
despite the existence
of exceptional circumstances in that the
appellants do not have passports; they have minor dependants; and
they have fixed addresses
with which strict bail conditions could
have been imposed;
7.6
That the magistrates failed to hold that the aforementioned
circumstances cumulatively amounted
to exceptional circumstances.
THE
ISSUES
[8]
The issues to be determined are whether the appellants have
discharged the burden
placed on them by
section
60(11)(a)
of
the CPA to be admitted to bail and whether the magistrate has indeed
erred by refusing to grant the appellants bail.
PRINCIPAL
ARGUMENT BY THE PARTIES
[9]
At the hearing of this appeal, Mr Mafereka argued on behalf of the
first appellant
that the State’s case against the second
appellant is very weak. According to counsel, there is no witness
which connects
the second appellant to the scene save for the
statement of the investigating officer and the cell phone records of
the second
appellant. Mr Mafereka implored the court to consider the
degree of participation of the parties during the alleged commission
of the offence. According to him, there is no act of violence that
can be attributed to the second appellant during the alleged
commission of the offence. It was also argued on behalf of the first
appellant that the court a quo erred in attaching much weight
to the
statement of a defence witness, Mr Pama, a traditional healer who
denied that he knows the first appellant, nor he ever
consulted with
him and handed him a medical certificate at the time of the alleged
commission of the offence.
[10]
Meanwhile, Mr Njeza argued on behalf of the second appellant that the
magistrate erred in rejecting
the second appellants’
application to be released on bail in that the State’s case
against the second appellant was
not so strong as to incentivise the
second appellant to evade trial. Counsel contended that the
respondent relied on a finger print
that was on a vehicle, a moving
object and it was not clear when that vehicle was bought and when the
fingerprints of the appellant
could have been placed there. It was
contended on behalf of the second appellant that the identification
of the appellant in the
photograph identification parade was fickle
having regard to the fact that there is no indication of the relative
length of the
period of observation and the fact that the appellant
was unknown to the witnesses. Mr Njeza contended that there are no
factors
provided by the evidence of the State to confirm a reliable
identification. He asserted that the court
a quo
erred in so
far as it found that the appellant’ release would undermine or
jeopardise the proper functioning of the criminal
justice system,
including the bail system.
[11]
Mr Gertse argued on behalf of the respondent that the argument raised
by the two counsels on
behalf of the two appellants relates to the
hearing of the matter on the merits which must be left for the trial
court. He contended
that there was nothing advanced by the two
appellants that justified the interference with the findings of the
court
a quo
. Counsel for the respondent contended that the
first appellant has two pending cases of robbery with aggravating
circumstances
and possession of unlicensed firearm and ammunition.
The first appellant also has two previous convictions of
housebreaking with
intent to steal and theft. He stated that the
second appellant has two previous convictions and has a pending
matter of robbery
with aggravating circumstances against him. He
implored the court to dismiss the appeal for both appellants.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[12]
It is trite that a court or a judge hearing an appeal in terms of
section 65(4)
of the CPA 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 shall give the
decision which in its opinion the lower court should have given.
Kriegler
J, as he then was, made the following remarks in
S
v Dlamini: Sv Dladla and Others; S v Joubert: S v Schietekat:
[1]
“
What
is of importance is that the grant or refusal of bail is under
judicial control, and judicial officers have the ultimate decision
as
to whether or not, in the circumstances of a particular case, bail
should be granted”.
[13]
Against this backdrop, I turn to consider the question whether the
lower court erred in refusing
to admit the two appellants to bail. In
my view, the starting point in addressing the issues before this
court should be the Constitution.
Section 35(1)(f) of the Bill of
Rights provides that everyone who is arrested for allegedly
committing an offence has the right
to be released from detention if
the interest of justice permit, subject to reasonable conditions.
From the reading of this section,
it is abundantly clear that it is
not absolute but its ambit is circumscribed by the interest of
justice. The court must be satisfied
that the interest of justice
warrants the release of the accused from detention. In
S v Dlamini
(
supra
), the Constitutional court observed that if facts
indispensable for establishing that the interests of justice permit
the arrestee’s
release are not established, the arrestee is not
entitled to the remedy under the subsection.
[14]
Bail applications of accused persons in court are regulated
by
section
60
of
the CPA. Section
60(1)(a)
of
the CPA provides that ‘
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(4)
provides that t
he
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; or
(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
circumstance there is the likelihood that the release of the accused
will disturb the public order or undermine
the public peace or
security”.
[15]
In
S
v Bennet,
[2]
this court stated that the court hearing the bail application must
express a balanced value judgment taking into account the factors
mentioned in section 60(4). The essence therefore of the principles
and considerations underlying bail is that no one should remain
locked up without good reason.
[16]
In this case, the charges levelled against the appellants involved
offences listed in Schedule
6 of the CPA and their application in the
court
a quo
had to be determined in terms of section 60(11)
(a) of the CPA, which provides as follows:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to 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 exceptional circumstances exist which
in the interests of
justice permit his or her release”
[17]
Section 60(11)(a) places a burden or an onus on an accused to satisfy
the court by way of evidence
that exceptional circumstances exists
which, in the interests of justice, permit his release. In other
words, the appellants had
to prove on a balance of probabilities in
the court a quo that they had to be released on bail.
In
S
v Bruintjies,
[3]
the
Supreme Court of Appeal, per Shongwe AJA, as he then was,
gave
the following exposition on what is meant by exceptional
circumstances:
"…What
is required is that the court consider all relevant factors and
determine whether individually or cumulatively
they warrant a finding
that circumstances of an exceptional nature exist which justify his
or her release. What is exceptional
cannot be defined in isolation
from the relevant facts, save to say that the legislature clearly had
in mind circumstances which
remove the applicant from the ordinary
run and which serve at least to mitigate the serious limitation of
freedom which the legislature
has attached to the commission of a
schedule 6 offence. …I
f,
upon an overall assessment, the court is satisfied that circumstances
sufficiently out of the ordinary to be deemed exceptional
have been
established by the appellant and which, consistent with the interests
of justice, warrant his release, the appellant
must be granted bail”.
[18]
In this matter, the personal circumstances of the appellants were
placed on record and were considered
by the magistrate. The first
appellant is 27 years old. At the date of his arrest, he was
residing at 2 Hlungulu Street,
Joe Slovo in Milnerton. The first
appellant stated in his affidavit that he has three children aged 4,
6 months and 5 months old.
All these children are dependent on him as
their mothers are unemployed. He averred that he has other dependants
who depend on
him too. He stated that he is involved in the taxi
transporting industry and her mother is currently struggling to run
this business
on his behalf. He confirmed that he has a pending case
against him.
[19]
The second appellant also filed his affidavit in support of his bail
application in the court
a quo. In his affidavit, the second
appellant avers that he is 26 years old and resides at No: 9 Nduli
Crescent Illitha Park Khayelitsha.
He is unmarried and has twins aged
2 years old. The children reside with their mother in Khayelitsha. He
works as a DJ and he charged
his clients R700 per hour. His income is
dependent on how often he gets booked in a particular month. He does
not know the complainant
or witnesses in this matter. He has another
pending matter of possession of firearm at the regional court in
Wynberg. He was willing
to pay the bail amount of R2000.
[20]
As stated above, both appellant denied any involvement in the alleged
commission of the offence.
In my view, the innocence or the guilty of
the accused is an issue which should be left to the trial court for
consideration. What
this court has to consider is whether the court
a
quo
erred in dismissing their application to be released on bail.
The record reveals that the magistrate in the court below considered
the real evidence in the form of photographs, cell phone location
based evidence, corroborating evidence in photograph identification
parade which identified both appellants as the alleged perpetrators
of the crime. The magistrate also considered the fact that
the second
appellant was identified by the fingerprints that were lifted in the
vehicle that was used in the commission of the
offence. The
magistrate also considered the photograph identification parade which
connected the appellants to the charges levelled
against them and
came to the conclusion that the State has a strong
prima facie
case against both appellants. In my view, the finding of the court a
quo in this regard is spot on and cannot be faulted. I agree
with the
view expressed by the court below that
at
least
prima
facie
,
the State case against both appellants is considerably strong.
[21]
The court below also observed that the first appellant raised an
alibi
defence in his affidavit and obtained a medical
certificate from a traditional healer one Mr Pama indicating that the
first appellant
was receiving treatment from him at the time when the
offence was committed. This medical certificate was also used by the
first
appellant at the Bellville regional court to show that the
first appellant was not wilfully absent from the court proceedings on
24 January 2020 but that he was busy receiving medical treatment from
Mr Pama a traditional healer. According to this medical certificate,
he consulted Mr Pama from 22 January 2020 to 25 February 2020 hence
he could not appear in court on 24 January 2020.
[22]
The investigating officer followed up on this
alibi
and
obtained an affidavit from Mr Pama who deposed to an affidavit to the
effect that he does not even know the first appellant.
According to
Mr Pama, the first appellant’s mother attended to his offices
and requested the relevant medical certificate
indicating that the
first appellant (her son) was in troubled of not attending court. He
then issued the said medical certificate
on her request.
[23]
At the hearing of this appeal, the first appellant’s legal
representative deprecated the
conduct of the investigating officer
who followed up on the
alibi
of the first appellant. He also
argued that the magistrate erred in attaching weight to it. In my
view, this express disapproval
of the investigation by the first
appellant’s legal representative was ill conceived and not well
thought out. It is worth
noting that during the bail proceedings at
the magistrate’s court, the first appellant requested the bail
proceedings to
be postponed as the first appellant indicated that he
had an
alibi
defence and that he was going to submit an
affidavit in support of his defence. The prosecutor requested the
first appellant to
favour the State with this affidavit as soon as it
was available so that the State could follow up on the
alibi
defence of the first appellant before the hearing of the bail
application. The first appellant’s legal representative agreed
to the State’s request and even stated that he would honour the
request of his colleague (the prosecutor) as the latter also
honoured
his request for allowing him to view the video footage relating to
the commission of the offence. In other words, the
first appellant’s
legal representative consented to the state following up on the first
appellant’s
alibi.
The suggestion that the investigating
officer acted off-kilter in obtaining the affidavit from Mr Pama is
with respect baseless
and unfounded. In my view, the court a quo was
correct in considering and attaching weight to the affidavit of Mr
Pama.
[24]
It has also been argued that this court should not attach much weight
to this statement as the
credibility of Mr Pama is questionable and
that the circumstances under which the statement was obtained are not
known. In my view,
this document forms part of first appellant’s
defence. It was filed as an annexure to the first appellant’s
affidavit
and it forms part of this record. This affidavit was
intended to be used by the first appellant in support of his
alibi
defence which in turn supported his averment that the State‘s
case against him is weak. If the first appellant intends to
challenge
the circumstances under which this statement was obtained, the first
appellant is at liberty to do so during trial. In
my considered view,
and
ex facie
the document, I am in agreement with the findings
by the court
a quo
that the medical certificate was obtained
by fraudulent means in a quest to mislead the court. I also agree
with the views expressed
by the magistrate that the first appellant
misled the Bellville regional court by submitting a medical
certificate that he was
sick when in fact he was not. This is
indicative of the fact that if he is released on bail he is likely to
evaded justice.
[25]
On a conspectus of all the evidence placed before court, I am of the
view that the court a quo
was correct in its finding that the two
appellants have failed to show any exceptional circumstances which,
in the interests of
justice, would have permitted their release on
bail. In addition, I am satisfied that the learned magistrate
correctly applied
the provisions of s 60(4), 60(5) and 60(9) of the
CPA. Section 60(4) of the CPA clearly provides that the interests of
justice
do not permit the release from detention of an accused where
one or more of the grounds referred to in the subsections of section
60(4) are established.
[26]
What I also find extremely disturbing and inexplicable is that the
appellants are applying to
be released on bail despite the fact that
they were previously granted the same indulgence but messed it up.
The appellants expect
to be afforded yet another opportunity to be
out on bail when they were released on bail in other matters. The
current offences
that the appellants are facing were allegedly
committed while they were on bail. In my view, the finding by the
court a quo that
there is a likelihood that the released of the
appellants on bail would disturb public order or undermine the public
peace or security
is beyond reproach. From the evidence placed before
this court it cannot be disputed that the appellants have the
propensity of
committing serious offences. They are all facing
serious charges some of which were committed whilst they were on
bail. If they
are released on bail they are likely to commit schedule
1 offences. In my view, it cannot be said that the magistrate was
wrong
in refusing to admit them to bail. There is no basis in law for
this court to interfere with the discretion exercised by the
magistrate.
In my view, the appeal must therefore fail.
ORDER
[27]
In the result, the following order is made:
27.1
The appeal is dismissed.
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT
WESTERN
CAPE HIGH COURT
[1]
1999
(2) SACR 51 (CC).
[2]
1976 (3) SA 652 (C).
[3]
2003
(2) SACR 575
(SCA) at para [6].