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[2016] ZAGPJHC 1
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Manaka v S (A417/2015) [2016] ZAGPJHC 1 (15 January 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A417/2015
15 JANUARY 2016
In the matter between:
TUMELO
MANAKA
........................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
J U D G M E N T
WRIGHT J
1. The appellant is a woman who is
about thirty years old. She was charged with murder in the Regional
Court at Tembisa. While awaiting
trial and during trial she enjoyed
bail. She returned to court on many occasions up to her conviction
for murder. Her bail was
extended prior to sentence. She returned to
court for the sentence procedure despite the fact that she knew she
faced a lengthy
term of imprisonment. She was sentenced to ten years
imprisonment on 30 April 2015. She has been in custody ever since.
The Regional
Magistrate refused leave to appeal either conviction or
sentence. Two judges of this court, on petition granted leave to
appeal
against conviction only. They could only have done so if it
considered that the appellant has reasonable prospects of success in
her appeal.
2. The appellant sought bail in the
Regional Court pending appeal. Her application was unsuccessful,
hence the present appeal. The
appellant, at all times legally
represented, provided the Regional Court with an affidavit in support
of her application for bail.
The state led no evidence to contradict
any allegation made by the appellant in her affidavit.
3. It would appear that the appellant
stabbed her fiancé once in the chest and that he died from
this wound. This happened
during an argument or altercation between
the appellant and the deceased. I am not minded to question the
finding by my two colleagues
on petition that the appellant has
reasonable prospects of success on appeal in regard to conviction.
Compare S v Anderson
1991 (1) SACR 525
(C) at 526 I – J. In my
view the state must accept that the appellant has reasonable
prospects of success on appeal against
conviction. The appeal is set
down for hearing on 10 May 2016.
4. The circumstances of the murder
match the kind of murder referred to in Schedule 5 to the
Criminal
Procedure Act 51 of 1977
, namely a murder other than a murder
described in Schedule 6, for example a premeditated murder. Under
section 60(11)
the appellant needs to adduce evidence to satisfy the
court that the interests of justice permit her release.
5. The following facts are common
cause:
5.1 The appellant is the mother of two
young children, about six and four years old.
5.2 The deceased was the father of the
children.
5.3 The appellant had no previous
convictions.
5.4 The deceased’s mother
testified at the trial for the appellant and was against the
incarceration of the appellant.
5.5 There are no other criminal cases
pending against the appellant.
5.6 The appellant has neither family
nor property outside South Africa.
5.7 She has lived in Tembisa all her
life.
5.8 She was employed, prior to
sentencing as a call centre operator at African Bank earning R5800
per month. If released on bail
she will return to her job.
6. In my view, given the facts set out
in the previous paragraph and the appellant’s return to court
on many occasions during
trial and in particular after conviction,
the risk of the appellant absconding is relatively slight. Ms Deoraj
quite correctly
conceded this point.
7. I have not been referred to express
authority that this appeal lies under
Section 65(1)(a)
of the
Criminal Procedure Act which
grants an accused the right to appeal
the refusal of bail by a lower court. The question is whether the
appellant is an accused
person for the purposes of
Section 65(1)(a).
Under
Section 60(1)(a)
an accused person 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. (My
emphasis.) Bail in the present case was sought after sentence which
necessarily meant
after conviction. If an accused, as referred to in
section 65(1)(a)
is only an accused seeking bail preceding conviction
then the present appeal is not founded in
section 65(1)(a).
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8. Under
section 65(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 or
her opinion the lower court
should have given. In my view it follows that an appeal referred to
in
section 65(4)
is an appeal as contemplated in
section 65(1)(a).
9. In Mabapa v State
2004 (1) BCLR 73
(T) Van Rooyen AJ, without expressly dealing with the question that I
have raised above, stated that the bail appeal before him
was one
brought in terms of
section 65.
The appellant in Mabapa had been
convicted by a Regional Magistrate of car theft and sentenced to
eight years imprisonment. The
appellant in Mabapa had applied for
bail after sentencing and pending an appeal. The application had been
dismissed by the Regional
Magistrate. The greater part of the learned
judge’s reasoning on appeal dealt with the criteria applicable
and in particular
how high the hurdle was for an appellant seeking
bail pending appeal.
10. In S v Anderson above, the learned
judge, Marais J, as he then was, heard an appeal against the refusal
of a Magistrate to grant
bail pending appeal.
The learned judge allowed the appeal
after considering the test on appeal rather than the appealability of
the Magistrate’s
decision. Marais J appears to have decided the
case, like Van Rooyen AJ on the assumption that the refusal of bail
by a lower court
pending appeal, is appealable. In S v Naidoo
1996
(2) SACR 250
(W) Joffe J heard an appeal against the refusal of a
magistrate to grant bail pending an appeal against sentence. The
learned judge
allowed the appeal on the merits of the case without
expressly dealing with the question of appealability.
11. In S v Bruintjies
2003 (2) SACR 575
SCA, an appeal against a decision refusing bail pending appeal
following a conviction and sentence in the high court it was held,
at
paragraph 5 that
section 60(11)
, on the face of it, deals with
unconvicted persons. However, it was held to follow that a person
found guilty of a Schedule 6 offence
cannot claim the benefit of a
lighter test on the question of bail pending appeal. I take this
paragraph as at least an implied
finding by the court that
section 60
is applicable in cases such as the present. See too S v Scott –
Crossley
2007 (2) SACR 470
SCA at paragraph 12.
12. In my view there is sufficient
authority for me to hold that the present appeal is to be decided on
its merits and that the
decision of the Regional Magistrate is
appealable.
13. It is not necessary for me to
decide precisely what hurdle the present appellant needs to overcome.
I am satisfied that it is
likely that the appellant will hand herself
over to the authorities to serve her sentence if her appeal fails.
Counsel for the
state, Ms Deoraj sensibly suggested no other reason
why the appeal should not be allowed.
14. In S v Masoanganye
2012 (1) SACR
292
SCA Harms AP considered the question of bail pending appeal.
Masoanganye is distinguishable from the present, on the question of
appealability in that in the former case the appeal was brought as a
matter of right. The trial court was a high court which had
refused
bail pending appeal. I am mindful of the framing of the order in
Masoanganye relating in particular to the prosecution
of the appeal
being a condition of bail. I shall frame my order along these lines.
15. The present appellant had paid bail
in an amount of R1000. Mr Ngobeni, for the appellant suggested that I
set bail in an amount
of R5000. Ms Deoraj did not suggest a different
figure.
16. In my view the appeal should
succeed. The learned magistrate refused bail on the ground that there
is a likelihood that the
appellant might not serve her sentence if
her appeal fails. For the reasons stated above, I disagree.
ORDER
1. The appeal is upheld.
2. The appellant is granted bail of
R5000 pending appeal against her conviction on condition that :
2.1 The appellant reports to the SAPS,
Tembisa, Ivory Park every Sunday between 8am and 6pm.
2.2 The appellant’s heads of
argument in the appeal are to be delivered by 4pm on 15 February
2016.
2.3 The appellant is to furnish the
Registrar of this court and the Director of Public Prosecutions,
Gauteng (Pritchard Street Office)
with her full residential and
postal address as well as the address of her attorney of record.
2.4 The appellant has to surrender
herself within 72 hours of the service of an order to surrender
contemplated in
section 307(3)(b)
read with
section 32
(2) of the
Criminal Procedure Act 51 of 1977
, in the manner prescribed by the
Uniform Rules on her at her residential address referred to in 2.3 of
this order.
3. If the appellant should fail to
comply with any part of this order bail will be provisionally
cancelled and the bail money provisionally
forfeited and a warrant
for her arrest shall be issued.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
On behalf of the Applicant: Adv
Deoraj
Tel: 062 070 3107
Email: adeoraj@npa.gov.za
Instructed by: DPP
On behalf of the Respondent: Gibson
Ngobeni
Tel: 076 241 3464
Email: gibsonngobeni@vodamail.co.za
Instructed by: Gibson Ngobeni
Attorneys
Date of Hearing: 15 January
2016
Date of Judgment: 15 January
2016