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[2021] ZAWCHC 230
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Mpande v S (A180/21) [2021] ZAWCHC 230 (8 November 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
High
Court Ref No: A180/21
Magistrate Serial
Number: 16/265/2016
In
the matter
between:
SIMTHOLE
MPANDE
Appellant
And
THE
STATE
Respondent
JUDGMENT ON BAIL
APPEAL 08 NOVEMBER 2021
LEKHULENI
AJ
[1]
This is an appeal against the refusal of bail against the appellant.
On 07 May
2016, the appellant and his two co-accused brought a formal
application for bail in the Cape Town magistrate’s court.
Their
application to be released on bail was refused. At the hearing of
that application, the appellant was represented by Mr Ahmed
from the
Office of the Legal Aid. The appellant now appeals against that
decision in terms of section 65(1)(a) of the Criminal
Procedure Act
51 of 1977
(“the
CPA”).
This court was informed at the hearing of this appeal
that the trial of the main case is pending in the Regional Court
before Mr
Msingapantsi in Cape Town Regional Court. The appellant is
standing trial with two co-accused on three charges of robbery with
aggravating circumstances and one count of attempted Murder. At the
hearing of this appeal, the record of proceedings of the Regional
Court before Mr Msingapantsi did not form part of the application
before me. However, I have only had sight of the record of the
appellant’s unsuccessful bail application in the Magistrate’s
Court, which was heard in July 2016.
[2]
Gleaned from the record of proceedings placed before me, during the
bail proceedings,
the appellant testified in support of his
application to be released on bail. He testified that he was 29 years
of age and that
he resided at No [….] for about nine years.
Prior to his arrest, he resided with his siblings who were attending
school.
His siblings were still very young and depended on him. He is
not married but had a girlfriend. His girlfriend lives in the same
vicinity in Phillipi. He testified that he does not have children
with the current girlfriend. However, he has two children with
his
erstwhile girlfriend who lives in the Eastern Cape. The two children
are currently living with his parents in the Eastern Cape.
He
testified that he was employed as a taxi driver since 2006. From his
employment as a taxi driver, he earns R800 per week. He
spends his
salary to support his siblings. He occasionally supports his children
in the Eastern Cape with his income.
[3]
It was his testimony that he has one previous conviction of robbery
committed in 2014
where he was sentenced to two years imprisonment.
He informed the court that he does not have any pending cases against
him or
any outstanding warrants. He was warned of his rights not to
incriminate himself regarding the merits of the current case and he
understood. He did not give any evidence at all relating to the
merits of the case and he did not answer any questions put to him
by
the prosecutor during cross-examination relating to the merits of the
case.
[4]
On behalf of the state the investigating officer, Warrant Officer
Lewis Arthur Western
(“Warrant Officer Western”)
,
testified. He gave details of the offence which the appellant and his
co-accused were charged with, namely; that it concerned
two armed
robberies of two shops. Warrant Officer Western’s evidence was
that on 26 April 2016 two shops were robbed which
are approximately
60 meters apart from each other and that the modus operandi of the
robbery was precisely the same. He informed
the court that according
to witnesses who witnessed the two robberies in both shops, the four
suspects arrived at the shop where
one suspect watched at the door
while the other three suspects entered the shop. Two of the suspects
who entered the shop had firearms
while the other had a green bag.
[5]
It was further the evidence of Warrant Officer Western that the
customers in the two
shops were told to lay down and thereafter the
shops were searched for cash, cigarette and airtime. At the second
shop, one victim
was shot after he tried to grab the firearm from the
suspect. The victim was shot in the leg and he managed to hold on to
the firearm.
The police were contacted after the first shop was
robbed and the police spotted two suspects running down the street
and one of
the suspects was holding the green bag which was used to
put the loot of both shops. The police immediately called for backup
and
gave a description of the two suspects. The appellant and his
co-accused (accused number 2), were arrested not far from the scene
at a parked Golf vehicle which belonged to the appellant’s
brother. On searching the appellant and his co-accused a firearm
was
found in the possession of the appellant’s co-accused. After
further investigation, one of the witnesses in the shop
had
recognised the appellant’s co-accused 3 from the scene.
[6]
An identity parade was held and witnesses pointed the appellant and
his co-accused
as the perpetrators of the two robberies. Warrant
Officer Western confirmed that the appellant had a previous
conviction of robbery
committed in 2014 and has no outstanding
warrants and or pending cases. The investigating officer also
confirmed that the appellant
was found inside the Golf vehicle which
was not parked far from the scene of crime shortly after the
commission of the offence.
It is the state’s case that this
vehicle was to be used as a getaway vehicle by the suspects. Nothing
was found in the appellant’s
possession.
[7]
It is worth noting that the appellant did not say anything regarding
all the allegations
of robbery levelled against him by the state. He
chose to remain silent and not to incriminate himself.
[8]
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: S v Dladla and Others; S v Joubert: S v Schietekat,
[1999] ZACC 8
;
1999 (2) SACR 51
(CC).
“
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.”
[9]
The offences which the appellant is facing are offences listed in
Schedule 6 of the
CPA. The appellant therefore had to persuade the
Court
a quo
on a balance of probabilities that exceptional
circumstances existed to permit his release on bail. An
assessment of the strength
of the state’s case is germane and
apropos to an enquiry as to the existence of exceptional
circumstances.
[10]
In
State v Dlamini
(CA&R 117/07) (07 March 2008)(NC) at
para 13, Majiedt J, as he then was, observed that in the course of a
bail application,
the presiding officer does not have to make a
finding, even on a provisional basis, as to the guilt or innocence of
an applicant
for bail. All the Court has to do is to weigh the
prima
facie
strength or weakness of the state’s case and such a
decision ought not to be made with regard to credibility findings in
order
that bail proceedings do not become a dress rehearsal for the
trial itself. See in this regard:
S v Van Wyk
SACR 2005 (1) 41
at para 6.
[11]
As stated above, the appellant had to prove the existence of
exceptional circumstances within
the meaning of section 60(11)(a) of
the CPA. In this case, the appellant only placed two reasons for
consideration by the bail
court for his release on bail, namely; that
he wanted to look after his children who are residing with his mother
in the Eastern
Cape and that he wanted to look after his siblings.
The appellant did not negate or say anything regarding charges
levelled against
him.
[12]
It has to be emphasised that in order to establish whether the
appellant has discharged the onus
in terms of section 60(11)(a) of
the CPA, the magistrate was constrained to determine whether on the
facts of the case, the proven
circumstances can be said to be
exceptional. This entailed the making of a value judgment on the part
of the bail court. See in
this regard:
S v Botha en ander
2002(1)
SACR 222 (SCA) at para 19 (230 a-b).
[13]
In her judgment, the magistrate found that there was a strong case
against the appellant. In
refusing bail, the magistrate made the
following pronouncement:
“
And
from what was testified in the absence of any alibi or anything from
the defence’s side it seems that there is a strong
prima facie
case against the accused …. the court needs to ascertain
whether exceptional circumstances exists and when the
court looks at
the factors I have just indicated the court needs to highlight the
following first:
·
First of all outset, onus is on the three applicants,
they face very serious charges of robbery aggravating as well as
attempted
murder.
·
There is independent eye witnesses that gave
statements and identified the accused.
·
The complainant got hurt, got shot and that might be
a danger to society….
·
No alibi or independent evidence was tendered to
clearly show that the applicants were not involved. And with that
into consideration
the court cannot find a single exceptional
circumstance that can say that the accused indeed prove to the court
that it will be
in the interest of justice to grant bail”.
(“magistrate’s text quoted verbatim”)
[14]
In my view, the conclusion of the magistrate is properly supported.
In addition, from the
totality of evidence placed before court, the
magistrate cannot be faulted in her finding that there was a strong
prima facie
case against the accused, based on the evidence of
the investigating officer. I am not persuaded at all that the
magistrate was
wrong in her refusal of the appellant’s bail
application.
[15]
Furthermore, I am of the view that, in light of the seriousness of
the charges levelled against
the appellant, the strength of the
state’s case, the previous conviction of the appellant, the
fact that the matter is partly
heard before the Cape Town Regional
Court and the high probability that, if convicted, the appellant will
be sentenced to a long
term of imprisonment, it is not at all
possible for me to conclude that the magistrate was wrong in denying
the appellant bail.
[16]
Notably, the appellant has a previous conviction of robbery which was
committed in 2014. He is
standing trial on three charges of robbery
with aggravating circumstances and on a charge of attempted murder
which were committed
in 2016, a year or so after he was convicted of
robbery. In her judgment, the magistrate considered the likelihood
whether if released
on bail, this will undermine or jeopardise
objectives of the proper functioning of the criminal justice system.
Having considered
this fact and other aspects, she concluded that the
accused failed to discharged the onus vested on him in terms of
section 60(11)(a)
of the CPA. In my view, the decision of the
magistrate in this regard was correct and cannot be questioned.
[17]
As stated above,
the
appellant is facing very serious charges. He has a previous
conviction of robbery of 2014. The current charges were allegedly
committed on 25 April 2016. In my judgment, if the accused is
released on bail, he is likely to commit other offences.
In
the premises, I am not persuaded at all that the magistrate was wrong
in her refusal of the appellant’s bail application.
In any
event, there were no exceptional circumstances that were shown by the
appellant to be entitled to be released on bail.
That then
makes me to conclude that t
here
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
[17]
In the result, the following order is made:
17.1
The appeal is dismissed.
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT