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[2016] ZAGPJHC 106
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Makwakwa v S (A14/2016) [2016] ZAGPJHC 106 (18 May 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A14/2016
DATE:
18 MAY 2016
In
the matter between:
MAKWAKWA,
ITUMELENG
.........................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
This is an appeal against the refusal of bail by the Regional
Magistrate Mr Mhlare sitting in
Kempton
Park Magistrates Court on the 15
th
of February 2016.
[2]
The matter is currently partly heard before the Regional Magistrate
Mr Manyathi wherein
Appellant
is accused number two (2).
BACKGROUND
[3]
It is common cause that the Appellant was arrested on the 5
th
of February 2012 in the
company of
co-accused. They were all arraigned before the Kempton Park
Magistrates Court on the following charges,
namely; Count 1-Robbery with aggravating
circumstances,
Count 2- Possession of a firearm, Count 3-Robbery with aggravating
circumstances, Count 4-Theft of a motor vehicle,
Count 5-Theft of a Motor Vehicle, Count
6-
Robbery with aggravating circumstances, Count 7-Kidnapping, Count
8-Contravention of
section 68 of Act 68 of
1995 (making false representations or pretending to be a member of
the South African Police Service), Count
9-Contravention of section 66(1) of Act 68 of 1995
(wearing
and using uniforms, badges etc of the South African Police), and
Count 10-
Possession of a firearm.
[4]
The Appellant made his first appearance on the 7
th
February 2012. He was released on
bail of
R7000,00 on the 29
th
of February 2012. The Appellant failed to appear before court
on the 3
rd
of December 2012. A warrant for his arrest was authorised and his
bail money
was provisionally forfeited to
the State until the 18
th
of December 2012. The Appellant
failed to
appear on the 18
th
of December 2012 and his bail money was finally forfeited to
the state.
[5]
His attorney informed the court that the Appellant was arrested on
another matter in Krugersdorp. The matter was then remanded
to the
29
th
of February 2013 so that he could
be
traced. The Appellant appeared on the 1
st
of February 2013 and was kept in custody
due
to his bail money being forfeited. The Appellant brought a new bail
application on the
30
th
of January 2014 and was granted bail in the amount of R7000,00. On
the 27
th
of
November 2015, the accused failed to
appear, and a warrant for his arrest was authorised
and
his bail money was provisionally forfeited to the state until the
19
th
of January 2016.
His
attorney informed the court that the Appellant was involved in a
motor vehicle accident.
His
bail money was finally forfeited to the state on the 19
th
of January 2016. The Appellant
appeared in
court on the 8
th
of February 2016 and the matter was remanded to the 15
th
of
February 2016 for a formal bail
application. The bail was formally denied and the Appellant
is hereby challenging that decision.
[6]
The Appellants affidavit contained the following averments, namely;
1.That
he is residing at House no [2…..], [G……] [P……],
[C……], [A.….].
2.That
his personal circumstances which were incorporated in his original
bail application be incorporated for purposes of the new
bail
application.
3.That
after he was released on bail he failed to appear in court on the
27
th
of November 2015. That the reason for his failure to appear in court
was due to him being involved in a motor vehicle accident.
He also
attached a medical certificate.
[7]
The State led the evidence of Luitenant Van Der Walt, the
investigating officer, who testified that the Appellant was arrested
on the 5
th
of February 2012 together with a co-accused at Modderfontein and that
in their presence was a gentleman who had been handcuffed
and
who it was later established was kidnapped from
Katlehong. His vehicle had also been
hijacked
by the Appellant. The Appellant and his co-accused introduced
themselves to the
police as being police
members who were busy with investigation. The Appellant and his
co-accused failed to produce any appointment
certificates. The Appellant and his co-
accused
were arrested and it was established that they were in possession of
two hi-jacked
vehicles as well as blue
lights, a firearm, reflective jackets, police insignia and police
equipment
including a police siren and handcuffs. After the arrest a stolen
vehicle was also recovered at a spare shop in Phomolong
which
belonged to the Appellant and his co-accused. This further vehicle
had been stolen in Lyttelton.
[8]
Counsel for the Respondent contended that the refusal to admit the
Appellant to bail by the Court
a quo
was correct in that the Appellant failed to discharge the onus
resting upon him to adduce evidence that there were exceptional
circumstances which in the interests of justice permitted his release
on bail.
LEGAL
PRINCIPLES
[9]
It is common cause that the charges fall in the category of offences
listed in schedule 6 of the
Criminal Procedure Act 51 of 1977
.
[10]
Section 60(11)(a)
of Act 51 of 1977 states the following:
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to -
(a)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 on bail”
[11]
The onus in respect of an application falling within the ambit of a
schedule 6 offence, rests upon the Applicant on a balance
of
probabilities. In
S v Moeti
1991 (1) SACR 462
(B), the learned Hendler J held at 463E-F:
“…
for
the applicant to succeed in this application there is an onus upon
him to show on a balance of probabilities: … (d) that
the
interests of justice will not be prejudiced if bail
is
granted.”
[12]
In the case of S v Dlamini; S v Dladla and others; S v Joubert; S v
Schietekat
[1999] ZACC 8
;
1999 (4) SA
623
(CC), the Constitutional Court held at page 63 that:
“…
The
focus at the bail stage is to decide whether the interest of justice
permit the release of the accused pending trial, and that
entails, in
the main, protecting the investigation and prosecution of the case
against hindrance”.
[13]
In terms of section 35 (1)(f) of the Constitution everyone who is
arrested for allegedly committing an offence has the right
to be
released from detention if the interests of justice permit, subject
to reasonable conditions.
[14]
The learned Harcourt J in the case of
S
v Smith and Another
1969 (4) SA 175
(N)
at 177 e-f stated that;
“
The
Court will always grant bail where possible, and will lean in favour
of and not against the liberty of the subject provided
that it is
clear that the interests of justice will not be prejudiced thereby”
[15]
In
S v Bruintjies
2003 (2) SACR 575
(SCA) at 577 para [7] the learned Shongwe
AJA, stated:
“
(f)
The appellant failed to testify on his own behalf and no attempt was
made by his counsel to have him testify at the bail application.
There was thus no means by which the Court
a
quo
could assess the
bona
fides
or reliability of the appellant
save by the say-so of his counsel.”
[16]
In
S v Mathebula
2010 (1) SACR 55
(SCA) at 59b-c the learned
Heher JA stated at para
[11]:
“
In
the present instance the appellant's tilt at the State case was
blunted in several respects: first, he founded the attempt upon
affidavit evidence not open to test by cross-
examination
and, therefore, less persuasive”.
[17]
In
S v H
1999 (1) SACR 72
(W), the learned Labe J stated at 77
e-f that;
“
Exceptional
circumstances must be circumstances which are not found in the
ordinary bail application but pertain peculiarly….to
an
accused person’s specific application. What a court is called
upon to do is to examine all the relevant considerations…as
a
whole, in deciding whether an accused person has established
something out of the ordinary or unusual which entitles him to relief
under s 60 (11) (a)”
[18]
In
S v Petersen
2008 (2) SACR 355
(C) on the meaning and interpretation of
exceptional circumstances in the context of
Section 60
(11) (a) of
the
Criminal Procedure Act, the
Court remarked that generally
speaking ‘exceptional’ is indicative of something
unusual, extraordinary, remarkable,
peculiar or simply different.
[19]
In terms
section 65(4)
of the
Criminal Procedure Act 51 of 1977
, the
court hearing the appeal shall not set aside the decision against
which the appeal is brought, unless such court is satisfied
that the
decision was wrong. In
S v Rawat
1999 (2) SACR 398
(W), it was said at page 400 f-g:
“
The
powers of this Court in an appeal against the refusal of a magistrate
to grant the appellant bail are limited - the real question
being
whether it can be said that the magistrate, who was vested with the
discretion to grant bail, exercised that discretion wrongly.
The
functions and powers of the Court in an appeal
such as the present are similar to those in an appeal against the
conviction or sentence…
Section 65(4)
of the
Criminal Procedure
Act 51 of 1977
provides that the magistrate's decision against which
the appeal is brought shall not be set aside unless the Court is
'satisfied
that the decision was wrong'.”
EVALUATION
[20]
In considering this appeal, even if this Court has a different view,
it should not substitute its own view for that of the
magistrate
because that would be an unfair interference with the court
a
quo’s
exercise of his or her
discretion.
[21]
It is after all the court
a quo
who would have been best equipped to deal with the question of bail,
steeped in the atmosphere of the case and the observance of
the
witness that was called to testify against the refusal of bail.
[22]
This court has also been mindful of the fact that where the High
Court finds that an Appellant has succeeded in establishing
‘exceptional circumstances’ as contemplated in
section 60
(11) (a) of the
Criminal Procedure Act, the
High Court itself is
entitled to determine bail.
[23]
The Appellants affidavit dated the 15
th
of January 2016, in support of his bail Application, alluded to the
personal circumstances which were placed on record previously
at his
initial bail application. These personal circumstances are not before
this Court. Counsel for the Appellant was unable to
elaborate in
respect to why these personal circumstances were not incorporated in
the affidavit.
[24]
During the bail proceedings the Appellant did not present
viva
voce
evidence in order to discharge the
onus. He relied solely on an affidavit. The state was accordingly
unable to cross-examine the
Appellant or to test the veracity of the
averments which were made in his affidavit. Accordingly the weight to
be attached to the
averments made in the affidavit are less
persuasive than had he taken the stand and given
viva
voce
evidence.
[25]
Counsel for the Appellant argued that because bail was set previously
on two occasions, and the fact that bail was finally
forfeited to the
State on two previous occasions, that this is
sufficient
punishment for the Appellant and should be viewed as exceptional
circumstances.
[26]
This court is not of the same view. This is a schedule 6 offence and
the duty is solely on the shoulders of the Appellant to
convince this
court that there are exceptional circumstances. As argued by the
Counsel for the Respondent, the strength of the
case against the
Appellant is very strong. The fact that bail was set previously has
puzzled the Respondent’s Counsel as
it was argued that bail
should have been denied from the inception. Counsel for the
Respondent argued that the Appellant was caught
red-handed.
[27]
It was the duty of the Appellant to ensure that all the relevant
factors be placed before the court
a quo
and this Court. In addition the full record as to why bail was
granted previously in the court
a quo
is also not before this court.
[28]
Due to the fact that this Court must decide this bail appeal on the
information at hand, it is the duty of the Appellant to
adduce
evidence that there are exceptional circumstances that dictate his
release.
[29]
This Court is mindful of the fact that the case is partly heard and
that three (3) state witnesses still need to testify. However
as
stated in the prosecutor’s address, the three witnesses that
still need to testify will be finalised in one day. The delays
in
finalising this case are solely attributable to the Appellant’
absence, as the three witnesses have been at court previously
to
testify, but the Appellant was absent.
[30]
The Appellant has remained silent in respect to the strength of the
State’s case against him. Counsel for the Respondent
on the
other hand has stated there is a very strong case against the
Appellant. This is a factor which this court has considered
in
finding no
exceptional circumstances
warranting the Appellant’s release.
[31]
In addition, in terms of
section 60(4)(d)
of the
Criminal Procedure
Act 51 of 1977
, the
interest of justice do
not permit the release from detention of an accused where there is
the likelihood that the accused, if he
were released on bail, will
undermine or jeopardise the objectives or the proper functioning of
the criminal justice system, including
the bail system.
[32]
The Appellant’s behaviour is demonstrative that he does not
take the legal system seriously. He has failed to appear
in court
thereby delaying the finalisation of this matter. He has also
refrained from contacting the Investigating officer for
a period of
two months
after he failed to appear in
court on the 27
th
of November 2014. He appeared on the 8th of February 2016 only after
the investigating officer had been to his residence to look
for him.
Only
then were the two medical notes produced. No proper explanation was
given as to why he failed to appear since November 2015.
The trial
court also had to hold an enquiry
on the
11
th
of November 2014, in terms of
section 342A
of the
Criminal Procedure
Act against
the Appellant and his co-accused as they were delaying
the finalisation of this trial.
[33]
On the probabilities this court does not find that the Appellant has
successfully discharged the onus as contemplated in
section 60
(11)
(a) of the
Criminal Procedure Act. He
has
failed to show that exceptional circumstances exist which in the
interest of justice permit his
release on
bail.
[34]
The factors referred to in respect to the Appellants’ affidavit
are not exceptional, or out of
the
ordinary. This court finds that the court
a
quo
correctly refused bail to the
Appellant.
[35]
There are no grounds to satisfy this Court that the magistrate’s
decision was wrong. The
requirements
of sections 65(4) of the Act were thus not met.
ORDER
[36]
In the result, the Appellant’s application for bail is
dismissed.
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
On
behalf of the APPELLANT : Adv J.C VAN AS
On
behalf of the RESPONDENT Adv M.M. RAMPYAPEDI
Date
Heard: 17 May 2016
Handed
down Judgement: 18 May 2016