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[2021] ZAWCHC 244
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Lonzi and Others v S (A195/2021) [2021] ZAWCHC 244 (25 November 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: A195/2021
In
the matter between:
LUYANDA
LONZI
First
Appellant
AWONKE
ZIQU
Second
Appellant
SICELO
MUSE
Third
Appellant
NDYEBO
DOTWANA
Fourth Appellant
and
THE STATE
Respondent
Coram:
Justice J
Cloete
Heard:
18 November
2021
Delivered
electronically:
25 November 2021
JUDGMENT
CLOETE J
:
[1]          This is an
appeal against the refusal of bail for all four appellants
by the
magistrate at Worcester on 29 June 2021.
Mr Mafereka
appeared for the first to third appellants and
Mr Njeza
for
the fourth appellant.
Ms Buffkins
appeared for the respondent
(“the State”). In the pending trial the first appellant
is accused no 1; the second appellant
is accused no 3; the third
appellant is accused no 4; and the fourth appellant is accused no 2.
[2]          The
appellants face two counts, namely murder and robbery with
aggravating
circumstances, arising from an incident in which the late
Mr Charl Munnik was fatally wounded by a gunshot to his head
during
an armed robbery at his jewellery store in High Street,
Worcester, at around 10.00am on Friday 29 January 2021. The charge
sheet
and testimony of the investigating officer during the bail
application indicate that the State intends relying on the appellants

having acted in the execution or furtherance of a common purpose or
conspiracy.
[3]          The charges
faced by the appellants are thus Schedule 6 offences in terms
of the
Criminal Procedure Act 51 of 1977 (“CPA”). The applicable
legal principles were succinctly summarised in the
recent judgment of
Binns-Ward J in
Killian v S
[2021] ZAWCHC 100
(24 May
2021) as follows:
‘
[2]
The principal charge faced by the appellant is in respect of an
offence listed in
Schedule 6 of the
Criminal Procedure Act 51 of
1977
. His application for bail therefore fell to be adjudicated
subject to s 60 (11)(a) of the Act, 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
.
[3]        The
effect of s 60(11)(a) was exhaustively discussed and elucidated in
the Constitutional
Court’s seminal judgment in
S
v Dlamini
;
S v Dladla
;
S v Joubert
;
S
v Schietekat
[1999] ZACC 8
(3 June
[1999] ZACC 8
;
1999); 1999
(2) SACR 51(CC).
It imposes an
onus
on
the applicant for bail to adduce evidence to prove to the
satisfaction of the court the existence of exceptional circumstances

justifying his release on bail. The court must also be satisfied that
the release of the accused is in the interests of justice.
The
standard of proof is on a balance of probabilities.
[4]        The
import of the “exceptional circumstances” test has been
traversed
in a number of judgments.  In
S
v Jonas
1998 (2) SACR 677
(SE) at 678E-G it
was held that the term does not posit a closed list of
circumstances.  Whether a court may be satisfied
that
exceptional circumstances exist depends on the facts and
circumstances established in the given application.  Whereas
“exceptional”
denotes
something
“unusual, extraordinary,
remarkable, peculiar or simply different”
(see
e.g.
S v Petersen
2008
(2) SACR 355
(C) at para [55]), it has been observed that
“
(s)
howing
“exceptional circumstances” for the purposes of s 60(11)
of the CPA does not posit a standard that would render
it impossible
for an unexceptional, but deserving applicant to make out a case for
bail”
(
S v
Josephs
2001 (1) SACR 659
(C) at 668I and
S
v Viljoen
2002 (2) SACR 550
(SCA)).  They
do not have to be circumstances
“over
and beyond and generically different from those enumerated in ss
60(4)-(9)”
, which are circumstances to
which regard is had in run of the mill bail applications not subject
to the strictures of s 60(11).
It is clear, however, that
they must at least be compelling enough to take the case made out for
the granting of bail beyond the
ordinary.
[5]        A court
determining a bail application affected by s 60(11) is required to
consider
the conspectus of evidence and decide whether it is
sufficient to persuade the court that an exception should be made to
the default
situation, which is that an accused person detained for
trial on a Schedule 6 offence should remain in custody pending the
outcome
of the criminal proceedings.   This involves the
court in having to make a value judgment (‘waarde-oordeel’);

cf.
S v Botha en ’n Ander
2002
(1) SACR 222
(SCA) at para 19.
[6]        Section
60(4) sets out a list of circumstances in which it would not be in
the interests
of justice to grant bail to an accused person.
The subsection provides as follows:
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; 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; 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.
Subsections 60(5) to (10) provide guidance on what
factors should be taken into account when considering the factors set
out in
section 60(4).
[7]       It is evident
from the result of the bail application that the court a quo was not
satisfied
that the appellant had discharged the onus of satisfying it
that there were exceptional circumstances that in the interests of
justice justified his release on bail.  In terms of
s 65(4)
of
the
Criminal Procedure Act, this
court may not set aside the regional
magistrate’s decision unless it is satisfied that it was
wrong.   When it
comes to the import of
s 65(4)
, the
observation of Hefer J in
S v Barber
1979
(4) SA 218
(D) at 220E-H is often cited.   In that matter
the learned judge said
“It is well
known that the powers of this Court are largely limited where the
matter comes before it on appeal and not as
a substantive application
for bail. This Court has to be persuaded that the magistrate
exercised the discretion which he has wrongly.
Accordingly, although
this Court may have a different view, it should not substitute its
own view for that of the magistrate because
that would be an unfair
interference with the magistrate's exercise of his discretion. I
think it should be stressed that, no matter
what this Court's own
views are, the real question is whether it can be said that the
magistrate who had the discretion to grant
bail exercised that
discretion wrongly.”
[8]       As I pointed
out in
S v Porthen and Others
2004
(2) SACR 242
(C), however, certainly in respect of bail applications
governed by
s 60(11)
, in which the bail applicant bears a formal onus
of proof, the nature of the discretion exercised by the court of
first instance
is of the wide character that more readily permits of
interference on appeal than when a true or narrow discretion is
involved.
I concluded (at para 15)
“Accordingly,
in a case like the present where the magistrate refused bail because
he found that the appellants had not discharged
the onus on them in
terms of
s 60(11)(a)
of the CPA, if this court, on its assessment of
the evidence, comes to the conclusion that the applicants for bail
did discharge
the burden of proof, it must follow (i) that the lower
court decision was ‘wrong’ within the meaning of
s 65(4)
and (ii) that this court can substitute its own decision in the
matter”
.  That analysis was most
recently endorsed in a decision of the full court of the Gauteng
(Johannesburg) Division of the High
Court in
S
v Zondi
2020 (2) SACR 436
(GJ) at para 11-13…
[13]        Bail
applications are sui generis. To an extent they are inquisitorial
and, in general,
there is no prescribed form for introducing evidence
at them.  But in cases where
s 60(11)
applies and there is
consequently a true onus on the applicant to prove facts establishing
exceptional circumstances, an applicant
would be well advised to give
oral evidence in support of his application for bail. This seems to
me to follow, because - differing
from the position in which the
Plascon-Evans rule is applied – the discharge of the onus is a
central consideration in
s 60(11)
applications. If the facts are to
be determined on paper, the state’s version must be accepted
where there is a conflict,
unless the version appears improbable.
Reverting to the example in the current case used to illustrate the
proposition, the
probabilities are neutral on whether the appellant
gave the police a consistent explanation or various conflicting ones.
Applying
the approach I have just described, as I believe it was
bound to do in the circumstances, the court a quo was obliged - if it
chose
not to exercise its power of its own accord to require oral
evidence - to accept the police evidence on the point.  The
example
given was not chosen idly.  Whether the accused supplied
false information at the time of his arrest or thereafter is a
material
consideration in bail proceedings (see
s 60(8)(a)).
’
[4]          The first
and fourth appellants testified during the bail proceedings.
The
second and third appellants elected to file affidavits. The
investigating officer, Sergeant Michael Pretorius, testified on

behalf of the State.
[5]          Although
the onus is on the appellants to show exceptional circumstances,
it
is convenient to briefly summarise the salient aspects of the
investigating officer’s testimony since it gives context
to the
role allegedly played by each appellant in the commission of the
offences.
[6]          Pretorius
testified that he arrived at the scene shortly after 10am.
He was
informed by one of the employees that there was CCTV footage from
cameras installed both inside the store and just outside
the front
entrance. Pretorius gave fairly detailed evidence of what he observed
on that footage, including the presence of four
male perpetrators in
the store, the armed robbery and fatal shooting of the deceased, and
the four men climbing into a blue Honda
motor vehicle after exiting
the premises. It bears emphasis that his unchallenged testimony was
that the camera placed outside
the entrance was head height and the
faces of the perpetrators were clearly visible as a result although,
as far as can be ascertained
from the record, one of them had a
Covid-19 protective mask over his face.
[7]          As to the
alleged identification of the appellants, Pretorius testified
that
the third appellant was identified by one of the deceased’s
employees as the man he assisted after he entered the shop.
He then
compared his own observation of the faces of the perpetrators from
the CCTV footage with a photograph of the third appellant
already in
the SAPS system.
[8]          Pretorius
traced the first appellant through a previous arrest record
of the
third appellant, as well as information received from a warden at
Brandvlei Correctional Centre, who recognised the first
appellant as
a previously sentenced prisoner released on parole from the CCTV
footage which was circulating on social media. According
to
Pretorius, and based on his own observation of the CCTV footage, it
was the first appellant who fired the fatal shot during
the robbery
and who thereafter immediately took possession of the deceased’s
firearm.
[9]          The
registration plate of the blue Honda was visible in the CCTV footage

but was discovered to be false. Once the correct registration plate
was traced the Honda was spotted at the home of one M, who
eventually
admitted having loaned it to the fourth appellant on the day before
the incident.
[10]       It was M who informed
Pretorius of the fourth appellant’s alleged knowledge of the

crime, although it is common cause that the fourth appellant was not
present during the incident itself (the fourth man involved
is
seemingly still at large). It was also M who informed Pretorius that
prior to the arrest of the first to third appellants they
(along with
the fourth unidentified perpetrator) threatened to kill him if he
disclosed any information, and it was the fourth
appellant who
instructed him to “stick to his story” and to dispose of
the Honda’s hubcaps. Pretorius had also
listened to WhatsApp
voice messages from the fourth appellant on M’s cell phone in
which M was given these instructions and
warned not to disclose any
information.
[11]       Pretorius testified further
that during an interview with the first appellant he informed
him
that he travelled to Worcester on the day in question (along with two
others) to meet up with the fourth appellant. They travelled
to and
from Worcester in a silver-grey Polo Vivo vehicle. This vehicle was
traced to the second appellant and his photograph located
in the SAPS
system.
[12]       Comparing this photograph to
the CCTV footage Pretorius formed the opinion that the second

appellant bore a strong resemblance to one of the perpetrators. On
9 February 2021 the second and third appellants were apprehended

in the Polo Vivo and the deceased’s firearm found hidden in its
dashboard. M also identified the second appellant from a
photograph
as one of the people at the fourth appellant’s home who
threatened him when he collected his blue Honda on 29 January

2021.
[13]       It was also Pretorius’
testimony that a Warrant Officer Keyser, a facial comparison
expert,
compared stills of the CCTV footage of the perpetrators with
photographs taken after their arrest, and found certain
characteristics
matching those of the first to third appellants.
[14]       After Pretorius had
commenced his testimony about the CCTV footage the appellants’

legal representative at the time,
Mr Dunga
, stated that he
wished to bring an application for the defence to view the footage
and peruse the report of the facial comparison
expert so as to enable
him to prepare properly for cross-examination in light of the onus
resting upon the appellants to show exceptional
circumstances.
[15]       The State indicated that it
had no objection, but would only make the expert report available
to
the defence once Pretorius had testified about it. The magistrate
expressed the view that she did not know whether the State
would seek
to admit the CCTV footage and/or report into evidence, and suggested
to
Mr Dunga
that his application be brought ‘
when we
actually get to that point’
. He agreed with this approach.
[16]       As it turned out the State
did not seek leave to admit either into evidence, which it
was not
obliged to do given that it bore no onus. However the fact of the
matter is that it was nonetheless open to the defence
to have renewed
the application for access to the footage and report when it became
clear how much reliance was placed on the footage
by Pretorius, and
after Pretorius had testified about the Keyser report. For reasons
which are not apparent from the record the
defence did not do so.
Indeed, and perhaps tellingly, not a single question was put to
Pretorius about the footage or the report,
despite comprehensive
cross-examination by
Mr Dunga
who appears to be an
experienced and competent lawyer. Accordingly the evidence of
Pretorius in regard to both stood uncontested.
[17]       It was contended on behalf
of the first to third appellants that the State was ‘
secretive’
about the contents of the video footage, which should at least have
been shown to the Court, especially given, so it was submitted,
that
it was contested by the defence. However the record shows the
opposite to have been the case. It was also submitted on behalf
of
these three appellants during argument that, given the inquisitorial
nature of bail proceedings, it was incumbent on the magistrate
to
have viewed the footage herself in order to be satisfied that the
testimony of Pretorius was true.
[18]       To my mind, in the
particular circumstances of this case, it could not reasonably have

been expected of the magistrate to go this far in order to assist
these appellants in discharging their onus, particularly where
they
seemingly ultimately elected not to rely on the footage themselves.
In any event the strength of the
prima facie
case against the
appellants was but one of a range of factors which the magistrate was
obliged to take into account, and she was
furthermore required to
consider all of the evidence and not only isolated aspects thereof.
[19]       It was also contended on
behalf of the first to third appellants that the magistrate should

have drawn an adverse inference from the investigating officer’s
failure to convene a formal identity parade (whether physical
or
photographic). This may be an issue in the forthcoming trial but such
a parade is an investigative tool, and nothing more, at
this stage.
[20]       While at trial the State
bears the onus to prove the guilt of the appellants beyond reasonable

doubt, at bail stage all that the magistrate needed to be persuaded
about – in the context of determining the strength of
the
State’s
prima facie
case – was whether the
evidence that was adduced was sufficient for this purpose. To my
mind, as far as the first to third
appellants are concerned, this
threshold was met. Different considerations apply to the fourth
appellant, and I deal with these
hereunder.
The
first appellant
[21]       During his testimony the
first appellant confirmed his presence in Worcester on the day
of the
incident and that he travelled to and from Worcester in the Polo
Vivo. He also confirmed having met up with the fourth appellant
and
knowing the other appellants. He denied any involvement in the
commission of the offences. According to him, he arrived in
Worcester
at around 10am and had already returned to Cape Town by 3pm. When it
was pointed out that he was spotted in the Polo
Vivo on CCTV footage
at just before 3pm while still in Worcester, he attributed this to
him having been mistaken about the time.
[22]       It is common cause that the
first appellant was previously convicted of murder along with
the
third appellant during 2012, and sentenced to an effective 14 years
imprisonment. He was released on parole on 26 February
2019 with
the expiry date thereof being 31 July 2025. He is classified as
a high risk parolee.
[23]       The first appellant was
arrested on the current charges on 1 February 2021. According
to
him, a parole official(s) indicated that his parole might be
reinstated if he is granted bail in the present case. He did not

identify the individual(s) who allegedly gave him this information
and nor did he call anyone to confirm this under oath.
[24]       During argument criticism
was levelled against the magistrate for failing to call these
–
unidentified – individual(s). This however is a neutral factor,
since Pretorius testified that he established from
the parole
authorities that the first appellant’s parole has been
permanently revoked. Indeed
Mr Mafereka
confirmed in argument
that the first appellant (as well as the third appellant) are
currently serving the remainder of their previous
sentences. This
means that the first appellant will in all probability remain in
custody until 31 July 2025.
[25]       There is nothing in the
record to refute this, and as far as I am concerned, that is the
end
of the first appellant’s appeal. In addition Pretorius’
unchallenged evidence was that his investigation, under
direction of
the DPP, was all but complete when he testified on 4 June 2021.
Accordingly, despite the complaint made on behalf
of the first to
third appellants that there is no indication as to when the trial
will commence, it is obviously open to the first
appellant to renew
his bail application in the highly unlikely event that this has not
eventuated 3 ½ years from now.
[26]       In any event the first
appellant’s personal circumstances, accurately recorded by
the
magistrate in her judgment, are unexceptional. He complains of having
to support dependants, yet his employment itself is sketchy.
During
argument in the court a quo
Mr Dunga
informed the
magistrate that all the appellants have savings which can be used to
pay bail of more than R5 000 each if necessary.
If that is
indeed the case then they are able to contribute, at least in the
short to medium term, towards the maintenance of their
dependents
from these savings.
The
second appellant
[27]       Given the second appellant’s
election not to testify, coupled with his bald denial
on affidavit
that he was not involved in the commission of the offences, the court
a quo was obliged to accept the investigating
officer’s
testimony in relation to the second appellant.
[28]       At the time of deposing to
his affidavit on 19 April 2021 the second appellant surely
knew
about his Polo Vivo’s “involvement” and that when
he and the third appellant were apprehended in that vehicle
the
police found a firearm (with the serial number erased) concealed in
its dashboard. Yet in his affidavit the second appellant
made no
attempt to explain these circumstances or even to provide some sort
of alibi. Indeed he swore on oath that ‘…
to this
date, I do not really know how it is that I am linked to the
commission of this offence’.
This is hardly indicative of
an attempt to advance exceptional circumstances.
[29]       Moreover the evidence of
Pretorius established that upon his arrest the second appellant

informed him that he was unemployed, but in his affidavit claimed the
opposite without providing any substantiation of such alleged

employment. The testimony of Pretorius also indicated that the second
appellant was one of the men who threatened to kill the State
witness
M if he disclosed any information about the commission of the crimes.
Weighed against all of this are the unexceptional
personal
circumstances of the second appellant which are accurately summarised
in the magistrate’s judgment. I am persuaded,
in light of the
aforegoing, that the second appellant failed to discharge his onus.
The
third appellant
[30]       Most considerations in
relation to the first appellant apply also to the third appellant.
It
is common cause that he too was released on parole during 2019. The
parole expiry date is 10 April 2026. From the record
it may be
fairly assumed that his parole expiry date is later than the first
appellant’s because – and this is important
for purposes
of this appeal – he was also convicted of escaping from custody
while awaiting trial in the previous murder
case for which he was
sentenced to a year’s imprisonment in October 2011.
[31]       Again it was Pretorius’
unchallenged evidence that he established from the parole
authorities
that the third appellant is classified as a high risk parolee and his
parole has been permanently revoked following
his arrest on the
current charges. He is thus serving the balance of his sentences for
his two previous convictions and again,
in my view, that is the end
of his appeal, at least for the foreseeable future, for the same
reasons which I have given in respect
of the first appellant.
[32]       Moreover the third appellant
knew about the circumstances of his arrest when he deposed
to his
affidavit on 19 April 2021 and yet, like the second appellant,
he elected not to take the court into his confidence
about how he
came to be in the second appellant’s vehicle with a firearm
hidden in its dashboard.
[33]       Although not strictly
relevant given his current incarceration as a sentenced prisoner,
the
third appellant’s personal circumstances as summarised in the
magistrate’s judgment are unremarkable, and his family’s

alleged financial prejudice, which is entirely unsubstantiated,
should be adequately addressed by using his savings, at least until

they are depleted.
The
fourth appellant
[34]       It is common cause that the
fourth appellant has no previous convictions, pending cases
or
outstanding warrants. It is also common cause that during the bail
proceedings the fourth appellant was not placed at the crime
scene.
However according to Pretorius, M’s information links the
fourth appellant to the offences themselves, as do his WhatsApp

voicemail messages to M as described above.
[35]       What also weighs against the
fourth appellant is M’s wife’s statement about
which
Pretorius testified confirming that, despite the fourth appellant’s
denial, the vehicle which he swopped with M for
the blue Honda was
still at the M residence on the morning of the incident; and
Pretorius’ evidence about the fourth appellant’s
initial
denial to him upon his arrest, in the presence of the first
appellant, that he knew the latter. Accordingly on the State’s

version the fourth appellant misled Pretorius and instructed M to
mislead the police. He also instructed M to dispose of the Honda’s

hubcaps which, potentially at least, would have been evidence.
[36]       When asked to explain his
principal objection to the fourth appellant being granted bail

Pretorius responded ‘…
the assumption or suspicion
that he… planned this whole incident’.
Pretorius
explained that he was awaiting cell phone records of the first and
fourth appellants which he had not been able to procure
at the time
of testifying due to an administrative backlog.
[37]       During argument in the court
a quo the prosecutor submitted that, given the fourth appellant’s

alleged threat to M, there was a likelihood that he would interfere
with him if released on bail, particularly given his knowledge
of
where M resides, which is in close proximity to the fourth
appellant’s home. The prosecutor also submitted that, given
the
lengthy prison term he faced if convicted, the fourth appellant might
abscond. He further placed reliance on a petition signed
by about
2900 individuals, both locally and abroad, expressing their outrage
at the deceased’s murder and objecting to the
release of any of
the appellants on bail.
[38]       However as submitted by
Mr
Njeza
the State has a fundamental problem when it comes to the
fourth appellant. It lies in the prosecutor’s failure to put
the
State’s version on crucial aspects to the fourth appellant
when he testified. These relate to the information allegedly provided

to Pretorius by M in respect of the threat made by the fourth
appellant to him; the instruction to dispose of the Honda’s

hubcaps; the WhatsApp voice messages to which Pretorius had listened
which would have served as objective evidence; and Pretorius’

testimony that the fourth appellant initially denied that he knew the
first appellant. All that was put to the fourth appellant
was that
portion of M’s statement in which the fourth appellant
allegedly communicated his knowledge of the robbery and shooting
to
M.
[39]       Accordingly the fourth
appellant was not afforded the opportunity to respond to these

allegations although the prosecutor must surely have been aware of
them since he referred to M’s statement itself when he

cross-examined the fourth appellant. On these crucial aspects
therefore the magistrate could not have exercised her discretion
to
accept the evidence of Pretorius over that of the fourth appellant’s.
[40]       In addition, and what made
it even more necessary for the fourth appellant to be given
the
opportunity to respond, is the evidence of Pretorius that M was
initially interviewed as a suspect and conveyed certain false

information at the first interview.
[41]       In addition, during
cross-examination of the fourth appellant it emerged that he was
previously arrested on a charge of bombing an ATM in the area in
which he resides and incarcerated as an awaiting trial prisoner
for
some time. The evidence is unsatisfactory since it is sketchy at
best, but from what can be gleaned from the record, and vaguely

confirmed by Pretorius when he testified, it appears that at some
point the fourth appellant was released on bail and thereafter

attended all court appearances until the matter was removed from the
roll.
[42]       In her judgment the
magistrate did not specifically distinguish the position of the
fourth
appellant from those of the other appellants. It is not in
dispute that he has a fixed address from which he operates his
mother’s
taxi/transport business, and has dependents who rely
on him for financial support. Although she found that there is a very
real
likelihood that all four appellants would interfere with or
intimidate State witnesses, when it comes to the fourth appellant
this
would probably only apply to M, and possibly his wife, given
that the fourth appellant was not present during the commission of

the crime and could thus not be identified by the witnesses present.
[43]       Having regard to the above I
am compelled to conclude that the magistrate misdirected
herself in
placing the fourth appellant in the same category as the other
appellants, and that the fourth appellant has met the
threshold of
“exceptional circumstances”. I emphasise that the
position might well have been different if the fourth
appellant had
been given the opportunity to fairly present his case.
[44]       However strict bail
conditions must be imposed. In this regard I cannot ignore Pretorius’

evidence that the fourth appellant previously threatened M, and the
alleged objective evidence of the WhatsApp voice messages about
which
he testified. Indeed M’s evidence, and hence the need to
protect him from threats and influence, is pivotal to the
State’s
case against the fourth appellant.
[45]       One of the main grounds upon
which the fourth appellant’s bail application was based
is that
he is needed to resume the taxi/transport business which operates in
the very area in which M resides. Clearly he cannot
be permitted to
return to that area while awaiting trial. This was raised with
Mr
Njeza
in argument, and both he and
Ms Buffkins
undertook
to provide me with an agreed draft order (after obtaining input from
Pretorius) containing suitable conditions in the
event that the
fourth appellant was successful in his appeal. This was duly provided
and is incorporated in the order which follows.
[46]
In the result an order is
made in terms of Annexure “X” hereto.
J I CLOETE