About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 131
|
|
Mabaso and Another v The State (A134/2020) [2021] ZAGPJHC 131 (5 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A134/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
DATE:
05/02/2021
In
the matter between:
NKOSINATHI
MABASO
First Appellant
AMBROSE
SHAKONG
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
This
judgment was handed down electronically by means of email and
uploading onto Caselines. The date on which it is handed down
is 05
February 2021
YACOOB
J:
1. The
appellants appeal the decision of the Regional Court dismissing
their
bail applications on 13 August 2020. The appellants have been charged
with two counts of robbery with aggravating circumstances
and
possession of an unlicensed firearm and ammunition. They were
arrested together with a third co-accused, who was granted bail
at
the same hearing on 13 August 2020 because the evidence against him
was considered by the magistrate to be weaker.
2. The
appellants are charged with schedule 6 offences. Section
60(11) of
the Criminal Procedure Act provides that an accused person charged
with a schedule 6 offence must, in order to be successful
in a bail
application, “adduce evidence which satisfies the court that
exceptional circumstances exist which in the interests
of justice
permit his or her release”.
3. It
is trite that keeping accused persons in custody while awaiting
trial
is an infringement of their rights to freedom of the person and the
right to be presumed innocent. It also limits their rights
to
continue with their lawful pursuits. However for certain offences the
legislature has determined that unless there are exceptional
circumstances the interests of society prevail over the rights of the
individual accused.
4.
Exceptional
circumstances include when an accused person adduces evidence that
the case against him or her “is non-existent
or subject to
serious doubt”.
[1]
The
appellants submit that they have done this by adducing evidence
regarding the events of the night on which they were arrested,
which
cast serious doubt on the case against them. In addition they allege
that there were irregularities with the identification
parade that
was held, which again, it is submitted, cast serious doubt on the
state’s case. It was also submitted that, because
the
magistrate found there was little evidence against accused number
three, he should have found the same regarding the appellants.
5.
In
addition the appellants rely on their personal circumstances. It was
submitted both that their personal circumstances are exceptional
and
that the magistrate failed to weigh their personal circumstances
against the interest of the state. However, since the appellants
are
charged with schedule 6 offences, section 60(11) means that this
weighing exercise only happens for them once exceptional
circumstances have been established.
[2]
6. The
evidence adduced by the appellants in the affidavits filed
in the
bail application contains a number of inconsistencies, irrelevancies
and unsupported allegations. Even the affidavit of
the corroborating
witness suffers from these flaws. I am unable to find in the
appellants’ favour that their evidence casts
serious doubt on
the state’s case.
7. Nor,
in my view, are the allegations made regarding the flaws
in the
identity parade procedure of the nature which raise a glaring red
flag and require this court at this stage to consider
that the
procedure may have been so unfair that it cannot be relied upon.
8. The
fact that the magistrate granted bail to the appellants’
co-accused is an indication that the magistrate considered the
evidence and the interests of justice, and did not simply deny the
appellants bail as a matter of routine.
9. The
appellants’ previous convictions for similar offences
is
certainly relevant to the magistrate’s enquiry, and I am
satisfied that he did not overemphasise them.
10. I
am not satisfied that the decision of the magistrate denying the
appellants
bail was wrong.
11. For
these reasons, the appellants’ appeals against the decision of
the
magistrate refusing their bail applications is dismissed.
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for the appellant: M Nemaunzeni
Instructed
by: Kganedi Attormeys
Counsel
for the State: AD Maharaj
Date
of hearing: 03 February 2021
Date
of judgment: 05 February 2021
[1]
S
v Jonas
1998
(2) SACR 673
at 678.
[2]
S
v Yanta
2000
(1) SACR 237
at 243h-j