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[2011] ZAGPJHC 23
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Zitha v S (Bail Appeal) (A57/2011) [2011] ZAGPJHC 23 (22 March 2011)
Latest
amended version: 3 September 2025
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SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: A57/2011
MAGISTRATE’S
COURT CASE NO: 43/1507/2010
APPEAL CASE NO: SCA
11/11
HIGH COURT REF NO:
57/2011
DATE:22/03/2011
In the matter between:
ZITHA
MBULELO
...........................................................................
Appellant
and
THE
STATE
.....................................................................................
Respondent
JUDGMENT
KGOMO, J:
Bail Appeal : Against
refusal of bail by Regional Court, Protea Soweto.
[1]
On 12 November 2010, the Regional Magistrate, Mr Nemavhidi, of the
Protea Magistrate’s
Court refused an application by the
appellant to be admitted to or released on bail in this matter.
[2]
He was charged (at time of bail application) with one (1) count of
murder, one (1) count
of possession of an unlicensed firearm, one (1)
count of unlawful possession of ammunition and one (1) count of
robbery with aggravating
circumstances.
[3]
Presently and even at his bail application in the court
a quo
he was represented by Mr Nardus Grové, an attorney in
Johannesburg.
[4]
The State is represented herein by Adv T Byker from the Directorate
of Public Prosecutions,
Johannesburg.
[5]
What is and was in issue or dispute in the applicant’s
application was whether
the offences he was charged with resorted
under Schedule 5 or 6 to the
Criminal Procedure Act 51 of 1977
in
addition to the other general points, among others, whether it would
be in the interests of justice that the accused be released
on bail.
[6]
The State argues that the offences the applicant was charged of fell
within the ambit
of Schedule 6 to Act 51 of 1977 whereas the
applicant argued that they fell within the ambit of Schedule 5.
[7]
In his short judgment, the Regional Magistrate, Protea North did not
go into the question
of which of the schedules was applicable. What I
could decipher from his judgment is that that aspect was not material
because
according to him, even if the charges fell within the ambit
of Schedule 5, he would still have refused bail as the accused’s
previous brushes with the law, his knack or propensity to use
firearms, the fact that he was on bail in an attempted murder case
wherein he shot at his girlfriend and her mother and most
importantly, the fact that the empty cartridges retrieved from the
scene
of the attempted murder and the one found at the murder scene
were ballistically linked to one firearm.
[8]
He ruled that the accused can be regarded as a person who, if
released on bail, may
endanger the safety of the public, the victims
or witnesses or any person linked or related to the witnesses. He
further ruled
that public order may be undermined and that there
might be community outrage if the applicant was granted bail.
[9]
The facts surrounding this matter are simple:
9.1
On 17
August 2010 the applicant went to his girlfriend, Pearl Phalatse’s
workplace in Booysens, Johannesburg and allegedly
intimidated her.
Apparently they were having some standing quarrel. They were sent to
Moroka Police Station in Soweto where the
police apparently knew of
their quarrels for mediation. There they were advised to stay away
from each other’s presences.
The applicant then accompanied
Pearl to her residence where he collected his personal belongings and
went his way. Pearl returned
to her workplace where she was advised
to open a criminal charge. She did so at Booysens Police Station.
9.2
After
work Pearl arrived at her place accompanied by her mother Sylvia at
P[...], S[...]. She was driving her car. They found the
applicant
waiting for them. As she stopped the car the applicant fired shots at
them with a firearm. She tried to reverse the car
but hit a wall. She
and her mother then jumped out of the car and fled on foot. The
accused got into the car and drove away in
it. They opened a charge
at Moroka Police Station.
9.3
At the
scene of the shooting two spent catridges were retrieved.
9.4
The
Phalatses took the police to the applicant’s home but he was
nowhere to be found. After several visits the applicant’s
photo
was published in the Daily Sun newspaper. Still he did not report to
the police. After a month he handed himself to the police
accompanied
by his attorney.
9.5
He was
charged with attempted murder, kidnapping, intimidation, malicious
injury to property, pointing of a firearm and robbery
with
aggravating circumstances. He appeared in the Protea Magistrate’s
Court 7 and was granted bail of R5 000,00.
9.6
In the
meantime, a day or so after the applicant shot at the Phalatses and
took their car, a relative of the Phalatses was shot
dead through the
window of her house at M[...], S[...] as she was seated on a sofa.
Her car went missing that same night. The State
averred that it had
an affidavit by a neighbour of the deceased that he saw the applicant
driving away in the deceased’s
car the night she was shot dead.
The car was recovered at Berea, near Hillbrow, Johannesburg.
9.7
At the
scene of the murder, a spent cartridge was retrieved by the police.
It was sent for forensic or ballistic analysis and the
results were
that this spent cartridge and the cartridges fired by the applicant
at the Phalatses were fired from the same firearm.
This firearm,
despite the applicant admitting firing it at the Phalatses has not
yet been recovered by the police. For interest
sake, the applicant’s
story is that he was firing blanks, not live ammunition, at the
Phalatses on 17 August 2010. The applicant’s
fingerprints were
also found in the deceased’s recovered car.
9.8
The
accused was then arrested at his home on 22 October 2010 and he then
failed in his bail bid on 12 November 2010 as stated above.
[10]
The applicant’s appeal against the court
a quo’s
refusal to grant him bail is based on the following grounds:
10.1 That
the State, which bore the duty to put evidence before the court
a
quo
on the Schedule applicable, did not do so, consequently his
bail application should have been regarded as a Schedule 5 one;
10.2 That
the State has not shown that the murder the applicant is charged of
was premeditated or not as a basis for
the application of Schedule 6;
10.3 That
the magistrate in the court
a quo
erred by not making a
specific ruling as to which Schedule was applicable, thus entitling
the applicant to being admitted to bail;
10.4 That
the magistrate erred in finding that the applicant, if released on
bail, will endanger the safety of the
public or any particular person
or will commit a Schedule 1 offence; and
10.5 That
the learned magistrate erred by finding that even where in
exceptional circumstances there was a likelihood
that the release of
the applicant will disturb the public order or undermine the public
peace, bail should still have been granted
as courts should not be
held ransom by outcries and opinions.
[11] I
have listened to arguments from both sides and read the heads of
argument filed of record.
[12]
The personal circumstances of the applicant were in short that:
(a)
he was
29 years old and a South African citizen;
(b)
he was
single but had three (3) children out of wedlock;
(c)
he was
residing with his mother at 1[…] N[…] Street, D[…]
1, S[...] and at some stage stayed at his father’s
house, also
in D[...], S[...];
(d)
at the
time of his arrest he was employed on a part-time basis as a mechanic
and he owned a Mazda 3 motor vehicle as well as other
movable assets,
jointly worth around R120 000,00;
(e)
he had
two (2) previous convictions – one for theft and the other for
assault;
he had a pending case –
i.e. the one in which he is on R5 000,00 bail as stated above.
[13]
The respondent submitted that the State had a strong
prima facie
case against the applicant and that the applicant, by his own
admission has a knack of disappearing without trace and as such,
knowing that he will be tried in the High Court with the possibility
of life imprisonment, he is likely to decamp or disappear.
Furthermore, the applicant only handed himself over to the police
during the Phalatse shootings after a month when he realised
that he
was only charged with attempted murder, a lesser charge.
[14]
Consequently the applicant was a flight risk who could and did
abandon his property and went into hiding
from the law. The
respondent further argued and submitted that the circumstances of
this case pointed the applicant being a person
who could endanger the
safety of the public or specific persons or the public interest or
commit a Schedule 1 offence or influence
or intimidate witnesses or
conceal or destroy evidence as well as undermine or jeopardise the
objectives or proper functioning
of the criminal justice system.
[15]
On the other hand, the applicant submitted and argued that he has
shown to the court that he
was no flight risk by attending court
regularly in the matter in which he was granted bail. He explained
that he disappeared for
a month when he was told by his mother that
the police were looking for him so as to accumulate funds for legal
representation
since he feared that the police threatened to kill him
wherever they found him. The applicant also submitted that the
investigation
officer who has since been removed from this case hated
him and as such could have fabricated the evidence of a ballistic
match
of spent cartridges. On the aspect of his fingerprints he
argued that they would be found in the deceased’s car since he
used to ride in it in the past.
[16]
How this last aspect is probable is, in my view, suspect as the
deceased herein was not his girlfriend.
The accused attempted to
implicate the deceased’s boyfriend, Thabo Matoko on the aspect
of the deceased’s motor vehicle:
he stated that the deceased’s
motor vehicle was registered by Thabo Matoko into his own names the
day after the deceased’s
shooting and death. This theory was
shown to be fallacious or untrue as it emerged that a different car
was involved which was
registered in Thabo’s names.
[17]
It is so that a court hearing a bail application should make a
determination whether the offence(s) in issue
fell within the ambit
of Schedule 1, 5 or 6 or whichever Schedule should be applicable. In
this case, if it was ruled that Schedule
6 was applicable, the duty
would have rested on the applicant to begin first to lead evidence in
which he ought to have shown that
there are exceptional circumstances
justifying his release on bail. Had it been ruled that it was a
Schedule 5 offence, the duty
would have rested on the prosecution to
prove that the interests of justice dictated that the applicant not
be admitted to or granted
bail.
[18]
In this case again, the applicant lead evidence first. One may be
tempted to surmise that that presupposed
an acknowledgement that this
was a Schedule 6 offence or case. It is my considered view that the
question of who started leading
evidence first is not a yardstick of
whether the charges relate to a Schedule 6 offence(s) or not. Any of
the parties may begin
to lead evidence first.
[19]
The next question this Court should answer is whether it will serve
any purpose to decide whether the offences
or charges fell under the
ambit of Schedule 5 or 6.
[20]
It is my considered view that the evidence led in an application is a
pointer to what Schedule the offences
could fall under.
[21]
Counsel for the applicant conceded that should this Court rule that
the offences/charges resorted under
Schedule 6, then the applicant
would have failed to advance exceptional circumstances justifying his
release on bail in terms of
section 60(11)
of the
Criminal Procedure
Act 51 of 1977
.
[22]
It is my further considered view that that determination should have
been done by the court
a quo
, more so that the charge sheets
then were not completed. It would be unfair and unjust to deal with
this appeal on the basis that
it was a Schedule 6 matter under the
circumstances. As a result, I will deal with it as if it was a
Schedule 5 matter. In short,
I am not making any determination or
ruling whether or not Schedule 6 would or should have been
applicable.
[23]
In any event, the court
a quo
arrived at its ruling on the
basis of the available evidence without mentioning Schedule 6.
[24] A
court of law can only refuse the granting of bail to an applicant if
it is in the interests of justice
that it so refuse it.
Section 60(4)
of the
Criminal Procedure Act decrees
that the interests of justice
do not permit the release from detention of an accused where one or
more of the following grounds
are established:
24.1
where
there is a likelihood that he/she would endanger public safety or a
particular person or will commit a Schedule 1 offence,
or
24.2
where
there is a likelihood that he/she will attempt to evade justice or
trial, or
24.3
where
there is a likelihood that he/she will attempt to or influence or
intimidate witnesses or conceal evidence, or
where there is a
likelihood that the accused will undermine or jeopardise the
objectives of the proper functioning of the criminal
justice system,
including the bail system, or where in exceptional circumstances
there is a likelihood that the release of the
accused will disturb
the public order or undermine the public peace or security.
[25]
In sections 60(5) to 60(9) of the Act, specifics elucidating and/or
explaining or expatiating on the above
requirements are set out in
more detail.
[26]
The million dollar question to be answered here is whether the
applicant herein, in the light of all the
circumstances prevailing
herein as brought to the fore by the evidence led is a person who
should or may be released on bail.
[27]
He is on bail on almost similar charges although he was only arrested
later on the charges herein due to
further investigations that
culminated in him being linked to the other case through a ballistic
report.
[28]
Both cases involve extreme violence and the use of one firearm. The
applicant is also allegedly linked to
the deceased’s car’s
disappearance through an eyewitness and the investigator testified
that they have reasonable apprehensions
or fear that the applicant
may intimidate or interfere with the eyewitness or other potential
witnesses. His girlfriend, Pearl
and her mother have even fled their
home in P[...] S[...] to somewhere in the A[...] area as they fear
the accused may harm them.
There is also evidence that the accused’s
fiancé(s) may also be called as witnesses and as such he may
interfere with
them also.
[29]
On behalf of the accused it was argued that the State can cure this
loophole by withholding the identities
of witnesses in this case.
[30]
It is trite fact that the applicant is by law entitled to copies of
witnesses’ statements to enable
him to prepare for his trial.
How he would not come to know who the witnesses are and what their
testimonies would be is in my
view improbable or impractical. I thus
find this suggested solution to be of little or no assistance in this
case.
[31]
The deceased in this case is closely related to the Phalatses who are
complainants in the case on which
the applicant is on bail. She was
gunned down in her house a day or so after the applicant shot at the
Phalatses – at their
home. The spent cartridges found at both
crime scenes are ballistically linked to one firearm and the
applicant fired that firearm.
[32]
He (applicant) denies categorically having been involved with the
murder of the deceased herein or the disappearance
of her car.
Despite the eyewitness account, it was argued on behalf of the
applicant that because it cannot be said whether the
deceased’s
car was robbed or stolen as it cannot be ascertained if it was taken
before, during or after the shooting, therefore
this aspect should
not have a bearing on the outcome of the bail application and appeal.
[33] I
beg to differ. At this stage, this Court is not dealing with proof of
any guilt against anybody. All those
aspects that the applicant is
talking about will be ventilated at his eventual trial. What is
important and material is whether
the applicant is a candidate for
release again on bail.
[34]
What bothers me is how the applicant’s claim can be probable
that his fingerprints should be in the
deceased’s car if in the
same breath he denies not having driven in it or coming up with any
shred of evidence in his presentation
to that effect. Since he knew
that this aspect was one of the cornerstones of the State’s
opposition to his application for
bail, it is my considered view that
the applicant ought to have dealt with it, however flimsily, but in a
manner that would have
shed some light about his claim. Absence of
some light on this aspect in my view strengthens the respondent’s
(read the State’s)
argument.
[35]
In the handbook,
Bail : A Practitioner’s Guide
,
2
nd
Edition by Johan van den Berg, the learned author
puts it as follows at pp 100, paragraph 73:
“ …
the
primary interest which is sought to be protected when the risk of
interference with state witnesses (or for that matter with
the police
investigations) is assessed, is the proper administration of justice.
It is therefore somewhat vague and imprecise to
refuse bail in order
to safeguard and ensure the proper administration of justice. It is
submitted that the proper approach is
to ask whether it is likely
that the accused will, not may, interfere with state witnesses in the
sense that he will attempt, unduly,
to influence the content or slant
of the evidence or to persuade them not to testify against him at
all. ”
[36]
The applicant’s behaviour and
modus operandi
in my view,
do not lend themselves to a favourable view about him. He can
disappear when he wants to and re-appear when he wants
to. His own
mother can remain tight lipped about his whereabouts despite various
visits by the police to the home she shares with
her son, the
applicant. People related to those that laid charges against him are
shot dead and the applicant comes up with ingenious
explanations in
attempts to deflect pointing fingers towards himself so that they
point to other persons.
[37]
Section 65(4)
of the
Criminal Procedure Act reads
as follows:
“
(4)
The court or judge hearing the appeal 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 or judge shall give the
decision which in
its or his opinion the lower court should have given.
”
[38] I
have perused all the evidence led in this application in the court
a
quo
as well as the Regional Magistrate’s reasons for
judgment. Short and incomprehensive though they may be, the court
a
quo’s
grounds for refusing bail to the applicant cannot be
faulted. By not looking at or mentioning exceptional circumstances in
his
ruling I can accept that he regarded Schedule 5 as being
applicable also. I have tested the totality of the evidence herein
against
the requirements for the granting of bail in respect of a
Schedule 5 offence and have come to the conclusion that the interests
of justice do not warrant the release of this applicant on bail.
[39]
There are no reasons why this Court should set aside and substitute
the court
a quo’s
ruling. In arriving at the above
decision I have taken into account the court’s duty to ensure
the maintenance of law, order
and justice and consequent prevention
of the evils that the criminal justice system be seen or viewed as so
weak that people feel
the need to avoid courts and then take the law
into their own hands. I have isolated the greater obligation of
jealously guarding
the rule of law from the inclination to allow
uniformed and/or ignorant public outcries or government of the day
perceptions clouding
judgment have and ensured that same did not
influence my ruling.
[40]
The applicant’s appeal against the refusal of bail by the
Regional Magistrate, Protea is thus rejected
and dismissed.
N F KGOMO
JUDGE OF THE SOUTH
GAUTENG
HIGH COURT,
JOHANNESBURG
FOR THE APPLICANT:
MR GROVÉ
FOR THE RESPONDENT: ADV T
BYKER
DATE OF ARGUMENT:
18 MARCH 2011
DATE OF JUDGMENT:
22 MARCH 2011