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2015
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[2015] ZAGPJHC 314
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Bohula v S (A388/15) [2015] ZAGPJHC 314 (11 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: A388/15
DATE OF HEARING: 10
DECEMBER 2015
DATE OF JUDGMENT: 11
DECEMBER 2015
In the matter between:
BOHULA,
KOKETSO
.............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J U D G M E N T
AVVAKOUMIDES, AJ
[1] This is an appeal against the
decision of the regional magistrate sitting in the Regional Division
at Wynberg not to release
the Appellant on bail pending trial. The
Appellant is charged with one count of robbery with aggravating
circumstances read with
section 51
(2) of the
Criminal Law Amendment
Act 105 of 1997
, unlawful possession of firearms a contravention of
section 3
of Act 60 of 2000 and unlawful possession of firearms a
contravention of section 90 of Act 60 of 2000.
[2] It is settled law that the
Appellant has to show exceptional circumstances in order to be
released on bail and that it is in
the interests of justice that the
Appellant be released on bail, in respect of the first count. See:
section 60 (11) (a) of Act
51 of 1977 and S v De Kock
1995 (1) SACR
299
(T). It is equally so that a court sitting on appeal shall not
set aside the decision against which the appeal is brought unless
the
court of appeal is satisfied that the decision was wrong.
[3] I have had careful regard to the
judgment of the magistrate in his reasoning when refusing bail. I
cannot find any misdirection
on the part of the magistrate. The
Appellant has 6 pending cases of robbery against him in this court.
Warrant Officer Odendaal
testified at the hearing that the Appellant
has six robbery charges against him which were committed at different
places. The Appellant
is in the process of negotiating a plea
bargaining on these outstanding cases. The trail court stated that
the Appellant has a
propensity to commit robbery. The State however
in its heads of argument, submitted that an agreement is in place but
would not
expound on what this agreement entails, except to say that
it is in terms of section 204 of the CPA.
[4] In FJ Sewela v The State reported
as
[2010] ZASCA 159
the court held that:
“In determining whether an
applicant for bail, may, if released on bail commit further offences,
a court, not being blessed
with some prophetic foresight, can
legitimately rely on the past alleged conduct of such an applicant.
The appellant’s alleged
conduct points to a possibility which
cannot be said to be remote or fanciful that he is likely to continue
to commit further crimes
should he be released on bail. To release
the appellant on bail under these circumstances would, to my mind,
not be in the interests
of justice as it is likely to seriously
undermine the criminal justice system including the bail system
itself. I have no doubt
that it will seriously undermine and erode
the confidence of the right thinking members of society in our
criminal justice system.
See s 60 (4) (d) of the CPA. The regional
magistrate found that the appellant had failed to prove, on a
preponderance of probabilities,
as is required by s 60 (11) (b), that
the interests of justice permit his release on bail. I cannot find
any fault with this conclusion.
It is trite that the powers of an
appeal court to interfere with the decision by another court to
refuse bail are circumscribed
by s 65 (4) of the CPA. It is not as if
the court of appeal has carte blanche. A court of appeal can only set
aside such a decision
if it is satisfied that it is wrong. S v Barber
1979 (4) SA 218
(D) and S v Faye
2009 (2) SACR 210
(TK).
[5] In this case however the state
submitted that its case against the Appellant is weak because the
security guards that were chasing
the Appellant did not identify the
Appellant when he was apprehended in the house of a woman into which
he ran, when chased. I
do not agree with this submission. The
Appellant’s version is that when he heard shots being fired
between the police and
the robbers, he walking merely walking down
the street, but as soon as the shots were fired, he ran into the
house of a woman.
The security guards that apprehended him in the
woman’s house also found gloves and a jacket of the Appellant
on the couch
of the woman’s home. The Appellant was still
wearing a bandana balaclava around his neck. The probabilities
against the Appellant
are overwhelming and I am accordingly not
persuaded that the Appellant has shown any exceptional circumstances
to be released on
bail and neither is it in the interests of justice
to do so.
[6] In the premises the appeal is
dismissed.
G. T. AVVAKOUMIDES
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Representation for Appellant:
Counsel: Attorney M. V. Matsepe
Representation for the Respondent:
Counsel: M. L. Gcaba
Instructed by:Director of Public
Prosecutions