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2021
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[2021] ZAGPJHC 372
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Nyamakazi v S (A049/2021) [2021] ZAGPJHC 372 (9 June 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A049/2021
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
DATE:
09/06/2021
In
the matter between:
PRESBYTARIAN
LINDA NYAMAKAZI
And
THE
STATE
JUDGMENT
MOLELEKI
AJ:
Delivered:
This judgment was handed down electronically by circulation to the
parties by email. The date and time for hand-down
is deemed to have
been 10h00 on 09 June 2021.
[1]
Introduction:
This is an appeal by the
appellant against the refusal of bail by the Magistrate Germiston.
The appellant was born on
01 January 1979, he is 42 years old. He is a father of four children.
Two of the four children were residing
with appellant together with
the appellant’s sister and nephew from May 2016 to April 2019.
There was no evidence presented
as to the role of each family member
in the lives of these children, including the role the mothers of the
children played. The
mothers of all the children were still alive as
at the time of the bail application. The appellant has been
incarcerated before,
the lengthiest of such sentences being 10 years,
of which he served 5 years and was placed on parole. He breached
parole conditions
and was incarcerated to complete the remaining 430
days. It was not placed on record before the Magistrate as to what
became of
the children during the period of his incarceration.
However, it became clear during the bail appeal that, soon after the
appellant
was incarcerated for having failed to observe parole
conditions, the two children moved in with their mother and maternal
grandmother.
Clearly, the children are not in the streets and there
is, therefore alternative care in place. The children have to date,
been
with their mothers since the appellant’s incarceration. By
now already the children have strengthened relationships with their
respective mothers.
[2]
The background of the appeal can be summed as follows:
The appellant was
arrested on 28 January 2020 on a charge of attempted extortion. The
allegations are that he went into one of the
stores and informed the
owner that he was an official from the Department of Labour. He was
in possession of an identification
card which purported to be from
the Department. He demanded an amount of R60 000 from the owner
of the store in order to allow
for the business to continue operate.
When the owner of the store insisted on going to the police station
for verification of his
identity, the appellant ran to the vehicle he
was travelling in and fled. It turned out, the vehicle had been
rented from a vehicle
rental company. His first appearance in court
was on 30 January 2020, on which day the appellant made it known to
the Magistrate
that he intended to apply for bail. The matter was
postponed to 10 February for the State to gather information for
purposes of
bail application. Thereafter, the matter was postponed to
17 February 2020 for the hearing of bail application, on which day
the
bail application commenced. The appellant engaged services of a
new legal representative who then engaged with the State for
mediation.
The bail application had been postponed to 18 March 2020
for further hearing. It was on this day that the appellant abandoned
his
application for bail. From 7 April 2020 the matter was postponed
for various reasons due to the nationwide lockdown that had been
declared as an effort to curb the rapid spread of the Corona virus in
the country. The appellant’s bail application ultimately
commenced on 29 July and was finalised on 14 September 2020 when the
Magistrate refused his application for bail.
[3]
The appellant was not legally represented during his bail application
before the Magistrate.
However, his rights to legal representation
were explained and he elected to prosecute his bail application in
person.
[4]
Section 65(4)
of The
Criminal Procedure Act, 51 of 1977
governs
appeals against refusal of bail and it provides that:
“
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 shall have
given”.
The court in
S
v Barber
1979 (4) SA 218
(D) at 220 E-H held:
“It is well known that the powers of this court are largely
limited where the matter comes before it
on appeal and not as a
substantive application for bail. The court has to be persuaded that
the magistrate exercised the discretion
which he has wrongly.
Accordingly, although this court may have a different view, it should
not substitute its own view for that
of the magistrate because it
would be unfair interference with the magistrate’s exercise of
his discretion. I think it should
be stressed that, no matter what
this court’s own views are, the real question is whether it can
be said that the magistrate
who had the discretion to grant bail
exercised that discretion wrongly…”
[5]
In his affidavit filed together with his notice of appeal as well as
per the attached
correspondence, the appellant set out the delays
that were occasioned by several postponements of the bail
proceedings. There was
also delays in him noting his appeal timeously
due to failure by the administrative component of the Germiston
Magistrate’s
court in ensuring that the record of the bail
proceedings is transcribed expeditiously.
[6]
The bail application was proceeded with as a schedule 5 offence in
terms of which
the appellant needed to satisfy the court that the
interests of justice permit his or her release on bail. This,
therefore, meant
that the provisions of
section 60
(11) (b) of the
Criminal Procedure Act were
applicable.
[7]
The State maintained that it was a schedule 5 bail application on the
basis that the
appellant had previous convictions and pending matters
against him. The Magistrate made a ruling that this was a schedule 5
bail
application and explained the basis thereof. Although it is
desirable for purposes of fairness that the Magistrate should have
allowed the appellant to address on the issue prior to her making a
ruling, of significance is that the Magistrate engaged the appellant
at length. However, the court is not of the view that the Magistrate
committed a material misdirection. The appellant does not
dispute his
previous convictions and pending matters and he has no grounds for
challenging the schedule resorted to. In fact, in
his affidavit in
support of his bail application he did concede it was a schedule 5
bail application but later in the same documented
contradicted
himself on the issue. There is no indication that the Magistrate
would have come to a different ruling with regards
the schedule had
he been afforded the opportunity to address. Therefore, the
Magistrate was not misplaced by ruling that the bail
application
resorted under schedule 5.
[8]
The court is not going to canvass each of the grounds of appeal. In
general terms
the grounds relate to the delay in the prosecution and
finalisation of the bail application as well as the noting of bail on
appeal
due to administrative delays in obtaining the transcripts;
that the Magistrate erred in failing to find that none of the factors
(or likelihoods) mentioned in
section 60(4)
of the
Criminal Procedure
Act are
present, failing to give sufficient attention to the best
interests of his minor children by not considering that he was the
primary
caregiver and that he was not informed of his constitutional
rights to legal representation.
[9]
In so far as the issue of delay in commencing the bail application is
concerned, ordinarily
and as a matter of principle, a bail
application should be heard as a matter of urgency as it affects the
right to be presumed
innocent and the supremacy of the right to
personal liberty. Therefore, seeing bail proceedings to finality is a
matter of urgency.
Once finalised and where bail is refused, such a
decision can always be appealed against. However, the appellant
contributed to
the delay. On his first day of appearance on 30
January 2020 he was legally represented and his intentions to apply
for bail were
made clear. On 17 February 2020 bail application
proceedings had commenced. On two occasions the applicant terminated
the mandate
of legal representatives. It is clear from the record
that the continuation of the initial bail application was abandoned
on 18
March 2020. The matter was therefore postponed to 7 April 2020
for further investigations. Subsequent thereto, the appellant was
requisitioned but the renewed bail application was similarly
postponed on several occasions due to the difficulties presented by
the nationwide lockdown regulations. The reasons for such
postponements included the State not being ready to proceed and case
docket not having been brought, the appellant not being brought to
court, prisoners arriving late, the appellant being in quarantine
and
the investigating officer not being present due to him presenting
with Covid 19 symptoms. Thereafter, the investigating officer
was not
before court on three different occasions. However, the pathological
report was presented to court confirming that his
absence was not
wilful.
The appellant submitted
that the delay caused him prejudice and that it is therefore in the
interests of justice that he be admitted
to bail.
It
cannot be disputed that the renewed bail proceedings were not
prosecuted expeditiously. However, the delays appear to have arisen
due to factors including the appellant terminating the services of
legal representatives on two occasions as well as him abandoning
bail
application, after which lockdown regulations were implemented. There
was a point when the appellant himself was in quarantine.
Of
significance however is that, these delays have no bearing on the
substantive considerations of whether he should have been
granted
bail or not.
[10]
With regards other grounds upon which the appellant presents his
appeal,
it
is clear from the record of proceedings, that from inception his
rights to legal representation were fully and properly explained
and
the Magistrate kept on reminding him of this right throughout the
proceedings. This issue was taken up at length prior to the
hearing
of the bail appeal. The appellant still insisted he wished to proceed
in person, this, despite the fact that The Judge
President of this
Division had even engaged the offices of The Legal Aid South Africa
to consider offering him legal assistance.
There is therefore, no
merit to this ground.
[11]
The appellant elected to adduce evidence on affidavit instead of
testifying under oath. The appellant
had to satisfy an onus and
adduce evidence which satisfied the court that the interest of
justice permits his release. However,
through his affidavit, the
appellant did not meet the onus. His affidavit did not contain
factual averments that were sufficient
enough to support the relief
he sought. The State / Respondent on the other hand adduced viva voce
evidence by the Investigating
Officer, Sergeant Mmatli. The
appellant’s evidence carries less probative value when
considered against the oral evidence
by the Investigating Officer.
[12]
The Investigating Officer set out all the evidence relevant and
available to the State. The evidence
recounts how the offence was
committed. Previous convictions and pending matters some of which are
of a similar nature to the charge
he is facing were placed on record.
These cases are as follows; he has a previous conviction of extortion
and fraud; he has a pending
case of extortion in Benoni. He has a
previous conviction of theft in 2000 in Witbank; fraud and extortion
in 2011 for which he
was sentenced to 10 years imprisonment; theft in
2009 and robbery common in 2016.
[13]
The appellant has furnished false personal information for him to be
granted bail in a matter
pending in Port Elizabeth and he has a
warrant of arrest out in respect of the same matter and he has
breached bail and parole
conditions. In Boksburg, the appellant is on
bail in respect of five matters pending in that court and has
falsified his death
in which event he no longer is in existence at
the Home Affairs database as he is considered to be deceased, the
date of death
being 1 November 2017. It is not, as a result easy to
obtain his fingerprints. It was for these reasons that it was
indicated that
he is a flight risk and that if he were to fail to
appear in court, it would be practically impossible to trace him.
[14]
The appellant submitted that witnesses would not be able to identify
him save when he is in the
dock. There is evidence of video footage
and that he was, at some point approached by police officers with the
assistance of an
employee of a vehicle Rental Company from which he
rented a motor vehicle who was in a position to identify him.
Therefore, the
State has clearly set out the evidence it would lead
in this regard. That being so, of significance in bail proceedings is
for
the State to outline the nature of its case and the type of
evidence the State has against the appellant. It is not required of
the State to prove its case at this stage of the proceedings.
[15]
There is no substance in the submissions made by the appellant. The
Magistrate dealt fully with
the evidence before court, including the
issue of the minor children of the appellant. It was nowhere
indicated that the appellant
was a primary caregiver of the minor
children, but rather that he was the sole breadwinner. A primary
caregiver, amongst others,
is a person with whom a child resides, who
ensures that the child is provided with food, looked after and
attends school regularly.
As at the time of his arrest in respect of
this matter the appellant was not residing with any of the minor
children. When dealing
with a primary caregiver, the court has to
take into account the best interest of a child as provided for in
section 28(2) of the
Constitution. Children must be in a position to
learn from the primary caregiver that individuals make moral choices
for which
they can be held accountable. Therefore, children must grow
in an environment of moral accountability where crime is shunned
upon.
[16]
It was submitted the Magistrate misdirected herself by failing to
find that none of the factors
(or likelihoods) mentioned in
section
60(4)
of the
Criminal Procedure Act are
present. Essentially, it was
submitted that the Magistrate failed to take into account the factors
presented by the appellant on
a balance of probabilities that should
have satisfied the court that it was in the interests of justice that
he be admitted to
bail. However, from the record of the proceedings,
the judgment does refer to the relevant sections which are to be
taken into
account. The Magistrate refused bail by referring to the
likelihoods of the grounds as provided for in
sections 60(4)
and
60
(9) of the
Criminal Procedure Act. The
Magistrate stated that:
He is a flight risk, he
has concealed his identity by giving false names and falsifying his
death, he has a propensity to commit
schedule 1 offences, he is
capable of generating a fake passport in the same way he was able to
obtain a death certificate and
that all of these he is doing so as to
falsify his identity. Over and above the reasons furnished by the
Magistrate, it is a well-known
fact that our borders are porous.
It can therefore,
not be found that the Magistrate did not take the likelihoods of the
grounds as provided for in
sections 60(4)
and
60
(9) into account.
[17]
The offence with which the appellant is charged is serious. The issue
of the appellant being
released on conditions was sufficiently
addressed. In other pending matters the appellant was granted bail on
condition he reports
at Boksburg police station three times a week.
He did report as expected. That, however did not deter him from
committing another
offence. The submission by the State that there
could be no suitable conditions imposed on the appellant was
therefore with merit.
[18]
There were objective facts before the Magistrate in support of the
likelihood that:
The appellant was a
flight risk. He had used false names and faked his death;
He has the propensity to
commit further offences as he committed this offence whilst on parole
and whilst he had other matters pending
against him;
His release on bail would
undermine or jeopardise the objectives or the proper functioning of
the criminal justice system. Taking
into account the number of cases
the appellant is facing and the number of complainants involved in
all these cases, his release
on bail will undermine or jeopardise the
public confidence in the criminal justice system. He has already
flouted the bail conditions
by failing to appear at the Benoni and
Port Elizabeth courts. It is his fault that when he was expected to
appear in Port Elizabeth
he was in custody. When the matter was
argued before me, the appellant stated that all the charges but for
one had been withdrawn,
but no such evidence was tendered. As a
person bearing the onus the appellant ought to have dealt fully with
this aspect.
The likelihood to
intimidate witnesses. This aspect was however not fully canvassed.
The appellant stated that he knew only one
witness in this matter.
The requirement in this regard is that there should be a likelihood
and not just a possibility. There is,
therefore nothing to support
this finding. However, this is not the only factor upon which the
State was reliant as already indicated
above.
[20]
The evidence adduced by the appellant in order to discharge the onus
he bears was fully dealt
with. The Magistrate was satisfied that the
State rebutted the appellant’s evidence and she was of the view
that the appellant
had failed to establish that it was in the
interests of justice that he may be admitted to bail.
There can be no
misdirection by the Magistrate. There is nothing to bring this court
to the conclusion that the Magistrate exercised
her discretion
wrongly
[21]
In my view, I am satisfied that the Magistrate was correct in her
decision finding that the interest
of justice do not permit the
release of the appellant on bail.
[22]
Accordingly, the appeal is hereby dismissed.
MOLELEKI AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA, GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearing
for the State:
Adv.
J.F Masina
Office
of the Director of Public Prosecutions
Defence
Counsel:
In Person
Date
of hearing: 04 June 2021
Date
of Judgment: 09 June 2021