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[2017] ZAGPJHC 212
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Mbele v S (A207/2017) [2017] ZAGPJHC 212 (7 August 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A207/2017
In
the matter between:
AMBROSE
MBELE
Appellant
and
THE
STATE
Respondent
JUDGMENT
MSIMEKI
J,
INTRODUCTION
[1]
This is a bail appeal brought by the appellant, Mr Ambrose Mbele,
whose application for bail was refused by the Regional court
Magistrate in Protea, Soweto, on 24 May 2017.
[2]
The appellant was duly represented when he applied for bail.
[3]
He was represented by Mr Makungo when the appeal was heard while Mr
Nel represented the State.
[4]
Mr Makungo, at the outset, and on behalf of the appellant applied for
condonation for the late filing of the appellant’s
Notice of
Appeal. The application was not opposed by Mr Nel and was duly
granted.
[5]
Applications for bail are governed by
Section
60 of the Criminal Procedure Act 51 of 1977
(the “CPA”).
[6]
It is common cause that the charge that the appellant currently faces
is a
Schedule 6
offence.
Section 60(11)(a) of the CPA
finds application in this matter.
The
Section
provides:
““
(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
”
(my
emphasis).
[7]
Appeals from the lower courts are regulated by
Section 65(1)(a) of
the CPA
. The Section provides:
“
65
APPEAL TO SUPERIOR COURT WITH REGARD TO BAIL
(1)(a) An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by the imposition by such
court of a
condition of bail, including a condition relating to the amount of
bail money and including an amendment or supplementation
of a
condition of bail, may appeal against such refusal or the imposition
of such condition
to
the superior court having jurisdiction or to any judge of that court
if the court is not then sitting
”
.
(my emphasis).
[8]
What the court or judge hearing the appeal should do is covered by
Section 65(4) of the CPA
. This Section provides:
“
(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
”.
(my
emphasis).
[9]
Courts have had occasions to deal with what “exceptional
circumstances” mean. The constitutional Court
in
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)
noted that
Section
60(11)(a)
limits the right enshrined in
Section
35(1)(f) of the Constitution
but added that such limitation was reasonable and justifiable in
terms of
Section
36 of the Constitution
in our current circumstances. This comes clearly in the judgment of
Kriegler J who wrote the unanimous judgment of the court. See:
paragraphs [75] and [76] of the judgment. For completeness sake I
shall refer to
Section
35(1)(f)
and
Section
36 of the Constitution
.
[10]
Section 35(1)(f)
provides:
“
Arrested,
detained and accused persons
35. (1) Everyone who is arrested
for allegedly committing an offence has the right—
(a)
…
(f) to be
released from detention if the interests of justice permit, subject
to reasonable conditions”.
Section
36 (1)
provides:
“
Limitation
of rights
36. (1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose
of the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less
restrictive means to achieve the purpose.”
While
Section 36(2)
provides:
“
(2)
Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights”.
[11]
In
S v Botha en ʼn ander
2002 (1) SACR 222
(SCA)
Viviers
ADCJ concluded that insofar as Section 60(11)(a) is concerned, an
accused person, on a balance of probabilities, has to
convince or
satisfy the court:
“
[20]
…eerstens dat daar buitengewone omstandighede bestaan wat sy
of haar vrylating toelaat en, tweedens, dat sodanige buitengewone
omstandighede die vrylating in die belang van geregtigheid
verloorloof”.
(See:
in this regard paragraph [20]).
[12]
Snyders JA, in
S
v Rudolph
2010 (1) SACR 262
(SCA) at 266h-i
came to the conclusion that “ordinary circumstances present to
an exceptional degree, may lead to a finding that release
on bail is
justified”. (See: also
S
v DV and Others
2012 (2) SACR 492
(GNP) at [7]
).
[13]
Van Zyly J, in a full court decision, observed that there are
“varying degrees of exceptionality, unusualness,
extraordinariness,
remarkableness, peculiarity or difference”.
In the context of
Section
60(11)(a)
,
the court said that the exceptionality of the circumstances must
persuade the court to find that “it would be in the interests
of justice to order the release of the accused person”. (See
:
paragraph [55]
in this regard).
[14]
Coming back to the facts of the current case, Mr Makungo for the
appellant, submitted that the appellant, on a balance of
probabilities, satisfied the requirements of
Section
60(11)(a)
and that he should be granted bail. Mr Nel, for the respondent
disagreed.
[15]
The personal circumstances of the appellant are set out in his
founding affidavit. He is 57 years old; a South African citizen
who
has completed his Grade 11 in 1981; he is married with four adult
children; and whose address has been verified.
[16]
The appellant, in his affidavit, alleged that he has a previous
conviction of assault which was committed in 1991. The SAP69
however,
reveals that he was convicted in 2005 and not 1991. I shall deal with
this later.
[17]
Mr Makungo, for the appellant, argued that the State’s case was
weak. He bases the argument on the fact that the complainant
(victim), according to him, contradicts herself. The complainant is
said to have said that the assailant was unknown. It was argued
that
the complainant first told the first report that she was raped twice
and then changed her version and said that she had been
raped three
times. The proper reading of paragraph three of the statement of A K,
the first report, clearly shows that the complainant
referred to the
assailant as an “unknown male to me from the front opposite
house”. This can only mean that the assailant,
who was from the
front opposite house, was known to the complainant.
[18]
What the complainant conveyed to the first report becomes clearer
when one reads it in conjunction with the statement of the
investigating officer, Detective Warrant Officer, Jabu A Xaba. The
complainant’s statement in this regard, is also instructive.
[19]
All it means is that the complainant alleged that she was raped by
the appellant on 6 May 2017 and twice on two previous occasions.
This
cannot be said to be any contradiction at all. The court
a
quo
has also so found.
[20]
Mr Makungo also conceded that the identity of the assailant was not
in issue. That the rape of the complainant, by the appellant,
on the
two previous occasions had not been reported as argued by Mr Makungo,
in my view, takes the matter nowhere.
[21]
Mr Makungo argued that the statement that the “victim is
mentally challenged” cannot simply be accepted like that
as she
needed to undergo medical examinations and tests. This, because the
statement, according to him, had not come from a doctor.
Shown that
the victim had been seen by a doctor as the J88 discloses, Mr Makungo
then conceded that that, indeed, was the case.
[22]
Mr Makungo further submitted that there was only evidence of old and
healed injuries. The submission, in the face of what the
doctor says
in the J88 cannot advance the appellant’s case. The doctor,
inter alia
, says:
1. On page 1, Part B
under General History, that “the victim is “mentally
challenged”.
2. Under general
Examination in Part C of the J88 in paragraph 8, the doctor states
that “absence of injury does not exclude
sexual assault”.
3. In Part F of the J88
under samples Taken for Investigation, in particular paragraph 3, the
doctor concluded that “clefts
on hymen indicate penetration of
vagina with blunt object”.
This,
in my view, negates Mr Makungo’s argument that the State’s
case is weak.
[23]
It is noteworthy that Mr Makungo conceded that the appellant’s
statement that he was convicted of assault in 1991 gives
the
impression that that occurred many years ago and that the previous
conviction, therefor, deserved to be disregarded. The statement
clearly shows that the appellant was sure of his facts which are
refuted by the SAP69 which discloses that the previous conviction
is
that of 2005 as correctly submitted by Mr Nel.
[24]
Mr Makungo’s submission that the appellant, as a business man,
would suffer immensely if he was not granted bail was
said not to be
holding water by Mr Nel who argued that no evidence had been
presented to show that his wife and his adult children
could not run
his business in his absence. Mr Nel’s submission has merit.
[25]
The court
a
quo’s
decision shows that the fact that the appellant was said not to be a
flight risk could not be viewed in isolation. Mr Nel argued
that
other factors such as the fact that the victim was mentally
challenged had to be considered as that made the case serious.
He
submitted that the victim being mentally challenged could be easily
influenced by the appellant. This, indeed, would amount
to tampering
with the State witnesses.
[26]
Mr Makungo referred the court to
S
v D and Others
2012 (2) SACR 492
(GNP)
in which Legodi J said that the low risk pertaining to flight, the
absence of the likelihood of interference with State witnesses
and
the low risk of reoffending constituted “exceptional
circumstances”. This, as shown above, does not appear to be
the
case in this matter.
[27]
Mr Makungo, again, referred the court to
S
v Botha and Another
2002 (1) SACR 333
(SCA)
where the court said that exceptional circumstances existed where the
accused proved that the State’s case was weak. This,
at this
stage, appears not to be the case.
[28]
The test at the end of the application is whether the requirements of
section 60(11)(a) of the CPA have been met. Differently
put, the
question which immediately comes to mind is whether the appellant has
adduced evidence which satisfies or convinces the
court that
exceptional circumstances exist which in the interests of justice
permit his release.
[29]
The other important question to be answered is whether the decision
of the court
a
quo
was wrong. This has not been shown by the appellant.
[30]
The evidence adduced by the appellant, in my view, in the light of
what I have said above, does not show that the court
a quo’s
decision was and is wrong. The appeal, in my view, should fail.
ORDER
[31]
I, in the result, make the following order:
The
appeal against the court a quo’s decision to refuse to admit
the appellant to bail is dismissed.
_____________________________
M. W. MSIMEKI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Date
of hearing: 4
th
August 2017
Date
of judgment: 7
th
August 2017
Counsel
for Appellant: Advocate L. Makungo
Counsel
for Respondent: Advocate P. Nel