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[2010] ZAGPPHC 145
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Gwebu v S (A647-2010) [2010] ZAGPPHC 145 (8 October 2010)
NOT
REPORTABLE
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(NORTH
GAUTENG,
PRETORIA)
Case
Number: A647-2010
Date:
08/10/2010
In
the matter between:
LUCKY
GWEBU
...........................................................................................
Appellant
and
THE
STATE
...................................................................................................
Respondent
JUDGMENT
MNGQIBISA-THUSl,
J
[1]
This is an appeal against the refusal by the magistrate at the Nigel
Regional Court to release the appellant on bail pending
the
finalisation of the criminal proceedings against him.
[2]
The police arrested the appellant on charge of robbery with
aggravating circumstances as defined in section 1 of the
Criminal
Procedure Act
51
of 1977
(the
CPA)
read
together with
sections 51(2)
,
52
(2),
52A
and
52B
of the
Criminal
Law Amendment Act
105
of 1997
. It appears from the evidence of Inspector Phillemon Mlambo,
the investigating officer, that on 25 February 2010, two men had
accosted
two other men who were fishing at the Nigel dam, pointed
them with a firearm and ordered them to hand over the keys to their
vehicles
and to jump into the dam. The two men then drove away with
one of the vehicles, a Toyota Run-X. On coming out of the dam and
collecting
their belongings, the complainants discovered a cell phone
which was handed to the police when they reported the robbery.
[3]
On 27 February 2010 the appellant was arrested for the robbery at the
Tsakane police station after he had been advised by the
police at the
Duduza Police Station, where he alleges he had gone to report that he
had been robbed of his cell phone on 25 February
2010 at Sotho
Street, Tsakane, that his cell phone had been found and was at the
Tsakane police station.
[4]
On 15 March 2010 the appellant made an application for his release on
bail In the Nigel regional Court
(the
first bail application).
During
the hearing it emerged that at the time the appellant was arrested he
was on parole after having been convicted in 2002 on
an armed robbery
charge and sentenced to 18 years imprisonment. After hearing
evidence, the magistrate postponed the proceedings
pending the
holding of an identity parade.
[5]
In postponing the proceedings the magistrate commented as follows (I
quote from the judgment)
'As
rightly pointed out by Mr Ngele, it is not this court's purpose today
to decide upon your guilt or innocence and the trial court
will be
tasked to do that. However it is very difficult if not impossible for
the court today to make a decision as to whether
there is a strong
case to be made against you, due to the fact that the majority of
investigation has not as yet been completed.
It
would appear that there is an ID parade to be held. It would also
appear that certain information from the cellular networks
must be
obtained and without that information being placed before court, the
court would not be able to exercise its discretion
judiciously to
consider the question of your release on bail sir.
For
this reason in terms of
Section 60(3)
the court is going to postpone
these proceedings for the court to hear evidence from the
investigating officer pertaining to an
ID parade and pertaining to
information obtained from the cellular networks as far as the cell
phone in question, is concerned.
Only thereafter will the court be in
a position to consider the strength and weaknesses of this case and
decide whether the weakness
in the state case, constitutes
exceptional circumstances."
[6]
At
the resumption of the bail proceedings and after the results of the
identity parade were made available, the Inspector Mlabo
testified to
the fact that at the identity parade, although the state witness had
pointed out the appellant, it was discovered
that he (i.e the
appellant) had swapped names with another awaiting trial prisoner who
participated in the identity parade. When
this was discovered the
person who had swopped names with the appellant was questioned about
the detail in the docket and a suspicion
arose when he gave a
different address and age from the information in the docket. On
further questioning the prisoner admitted
that the appellant had
asked him to assist him by participating in the identity parade and
that he had swopped names with the appellant.
With regard to the cell
phone results Mlambo testified that although he had received them
they were in a disc which was not compatible
with the computers they
use and was therefore unable to read it.
[7]
Magistrate refused to grant the appellant bail on the ground that the
appellant had not shown provided sufficient evidence that
there were
exceptional circumstances justifying his release in the interest of
justice.
[8]
The magistrate in the first bail application said the following (I
quote from the judgment):
"Your
attorney instructed informed the court that the exceptional
circumstances are to be found in the fact that there is a
non-existing or extremely weak state case to be made against you. The
court cannot with the greatest respect agree with this contention
especially seen in the light of the fact that at an ID parade held,
you were identified by one of the witnesses as the person responsible
for this offence.
The
court also heard evidence that during the ID parade, certain events
occurred in which you and another person, it would appear,
changed
identities or swapped identities. Although the court cannot at this
stage find that as a fact, it would appear that there
are witnesses
who can substantiate that fact. The purposes of these proceedings are
not today to decide upon your guilt or innocence
and the
admissibility of whatever happened or transpired during the ID
parade, it will be tested thoroughly during your trial.
The
court cannot find that there are today any exceptional circumstances
which may warrant your release on bail. Even if the court
were today
to misdirect itself in its finding, the court must still decide if
there are exceptional circumstances to be made up,
whether it would
be in the interest of justice to allow you bail.
Section
60(4)
of the
Criminal Procedure Act clearly
states that interest of
justice will not allow for any person's release on bail if there is a
likelihood that that person, if that
person were to be released on
bail, would try and influence the outcome of the trial or the
intention of a proper function of criminal
justice system and
deciding upon that fact the court must be guided by the provisions of
Section 60(8)
which reads That the court should consider whether an
accused or an Applicant knowing to be false, gave false information
during
his or her arrest or during bail proceedings.
In
the light of the evidence of inspector Mlambo today, it would appear
that was indeed the case and that is what exactly transpired
during
the ID parade. For that reason the court cannot find it to be in the
interest of justice to release you on bail either."
[9]
On 1 June 2010 the appellant brought a second bail application. He
placed new facts before the court.
[10]
At the hearing (the second bail application), two witnesses, Charles
Matthys Van der Merwe and Joseph Nhlamo, testified on
behalf of the
appellant.
Van
der Merwe, a Correctional Services officer at the Nigel prison,
testified that he was present at the identity parade and that
the
appellant was not the one who was pointed out by the witness. He
alleged that another prisoner was the one pointed out as the
suspect
in the robbery. Under cross examination and when confronted with a
statement he had made to the police two months after
the identity
parade was held in which he had deposed to the fact that at the time
the identity parade was conducted, he was busy
escorting the
prisoners and was not paying any attention as to what was happening
in the parade. He further testified that at the
time the statement
was taken he could not clearly remember the incident and could not
recall what happened since he was dealing
with a lot of awaiting
trial prisoners. He testified that he now could clearly remember the
events of the day when that parade
was held.
[11]
Nhlamo testified that he was part of the line-up and that he, and not
the appellant was pointed out.
[12]
The State called Sibongile Ncingwana, the officer responsible for
conducting the identity parade. She testified that during
the parade
the appellant and Nhlamo had swapped their names. Further that the
appellant was the one who was pointed out at the
parade.
[13]
Appellant's counsel submitted that the court should find in favour of
the appellant for two reasons. Firstly, that the court
should accept
the evidence of both van der Merwe and Nhlamo to the effect that the
state witness did not identify the appellant
at the parade. Secondly,
that the only fact that linking the appellant to the robbery is the
cell phone, making the State's case
against the appellant weak. Since
the appellant had given an explanation as to how he had lost his cell
phone, his evidence should
be accepted.
[14]
The magistrate in the second bail application said the following (I
quote from the judgment):
"Regarding
the first question as to whether there are new facts which were not
available to court during the first hearing
of the bail application,
the court must find in the affirmative. On 7 April 2010 when the
court initially heard the bail application,
it was alluded to by the
investigating officer, a witness that there was some confusion
pertaining to the identity of people during
this ID parade.
Today
the court heard evidence from Mr Van der Merwe and Mr Nhlamo to
substantiate that. The court must emphasise at this stage
that its
duty today is not to decide upon the guilt or innocence of the
accused. The trial court, competent trial court will have
to make
that ruling and finding upon the fact.
Whether
the correct procedures were indeed followed during the ID parade,
whether there were any irregularities, the trial court
will be tasked
with to make a finding upon that fact. The court has heard evidence
from the person responsible for the ID parade
sir, that you were
indeed pointed out during the ID parade.
This
was contradicted by a witness Mr Joseph Nhlamo and Mr Johannes
Matthys van der Merwe. At this stage in the light of EXHIBIT
A before
the court, the court must place a question mark behind the evidence
of Mr Van der Merwe. He comes to court and testifies
with a great
amount of certainty that he can clearly remember that on the day in
question, you were not pointed out as the person
responsible for this
offence, however in his statement before this court, he contradicts
himself by saying I was not concentrating
as to who was pointed but
only there to see to it that prisoners are returned safely to the
cells.
Although
the court finds that there are indeed new facts before court, the
court must find that those facts are exceptional in the
circumstances
and the court cannot do that today. At this stage it would appear
that there is evidence linking you with the offence
and the court
cannot today in the light of the evidence of Mr Nhlamo and Mr Van der
Merwe, find that there is a non-existing state
case to be made
against you.
In
the light of that fact, although there are new facts before court,
the court cannot find those to be exceptional circumstance."
[15]
The appellant appealed against the refusal of his bail application on
the following grounds: (I quote from the record)
"15.1
That the Magistrate erred in finding that there is a strong case
against the Applicant based on the unsubstantiated allegations
by the
investigating officer.
15.2
The learned Magistrate erred in not taking into account that the
Applicant's address was confirmed and the Applicant's evidence
that
he will not evade his trial.
15.3
The learned Magistrate erred in finding that there is a prima facie
case against the Applicant viewed in the light of the denial
of any
involvement by the Applicant and the explanations tendered by the
Applicant.
15.4
The learned Magistrate erred in not finding that the case against the
Applicant is weak and the Applicant has shown on a balance
of
probabilities that there are exceptional circumstances that justifies
his release on bail.
15.5
The learned Magistrate erred in not finding that the weakness of the
State's case read cumulatively with the persona! circumstances
amount
to exceptional circumstances.
15.6
The learned Magistrate erred in not finding that it is in the
interest of justice that the Applicant be released on bail.
15.7
The learned Magistrate erred that the release of the Applicant on
bail will jeopardise the proper administration of justice."
[16]
The offence with which the appellant is charged is mentioned in
Schedule 6 of the CPA. The provisions of
section 60
(11) (A) of the
CPA are applicable to the matter. The section provides that:
"Nothwithstanding
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 which in the interest
of justice permit his
or her release."
[17]
At the first bail hearing the appellant did not allege that
exceptional circumstances exist. I agree. In the second bail hearing,
although new facts were placed before the court, the court did not
consider the new facts to be exceptional circumstances, which
in the
interest of justice permitted appellant's release on bail. In S v
Dlamini;
S v Dladta and Others; S v Joubert, S v Schieterkat
1999
(4) SA 624
(CC) at paras 75-76, Kriegler J said the following with
regard to exceptional circumstances:
"An
applicant is given broad scope to establish the requisite
circumstances, whether they relate to the nature of the crime,
the
personal circumstances of the applicant or anything else that is
particularly cogent.... In requiring that the circumstances
proved be
exceptional, the subsection does not say they must be circumstances
above and beyond and generically different from those
enumerated.
Under the subsection, for instance, an accused charged with a
Schedule 6 offence could establish the requirement by
proving that
there are exceptional circumstances relating to his or her emotional
condition that render it in the interest of justice
that release on
bail be ordered notwithstanding the gravity of the case."
[18]
This court can only interfere with the decision to refuse bail if
I find that that decision was wrong. See section 65(4)
of the CPA and
S
v
Barber
1979
(4) SA 218
(D & CLD). However Binns-Ward AJ in S
v
Porthen and Others
2004
(2) SACR 242
(C) expressed the view that interference on appeal was
not confined to misdirection in the exercise of discretion in the
narrow
sense. The court hearing the appeal should be at liberty to
undertake its own analysis of the evidence in considering whether the
appellant has discharged the onus resting
upon
him in terms of section 60(11)(a).
[19]
The appellant's personal circumstances appear from the record to be
the following:
19.1
he is a South African and living in Tsakane within the Gauteng
Province;
19.2
he is single and has no dependants;
19.3
at the time of his arrest he was doing piece jobs at an Islamic
institution and was also being trained;
19.4
he has a previous conviction of armed robbery for which he was
sentenced to 18 years imprisonment in 2002. At the time of his
arrest
he was on parole.
[20]
In
Sv
Scott-Crossley
2007
(2) SACR 470
(SCA) the court state that an accused personal
circumstances which are common place do not necessarily constitute
exceptional circumstances
for the purposes of section 60(11 )(a). I
agree that the sentiment expressed by the appeal court apply in this
matter.
[21]
It was submitted on behalf of the appellant that the case against the
appellant was weak and non-existent. I am of the view
that this view
is incorrect. A weak state case will not necessary result in the
granting of bail. The state witnesses have testified
that the
appellant was identified at the identity parade . Further the
circumstances under which the appellant's cell phone was
found does
in a way link the appellant with the offence, establishing a
prima
facie
case
against the appellant.
[22]
Taking into account the facts adduced at the first bail hearing and
the new facts taken together, I am of the view that they
do not
sufficiently constitute exceptional circumstances which warrant the
release of the appellant on bail in the interest of
justice.
[23]
I am satisfied that the court
a
quo
correctly
found that no exceptional circumstances existed which would in the
interest of justice permit the appellant's release.
[24]
Accordingly the following order is made: “The appeal is
dismissed."
MNGQIBISA-THUSI
J