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[2011] ZAGPPHC 203
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Lekgau v S (A1030/10) [2011] ZAGPPHC 203 (21 October 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
Case
No: A1030/10
DATE:21/10/2011
In
the matter between:
DIALE
PHILLIP LEKGAU
........................................................................................
APPLICANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J.
[1]
The appellant brought three unsuccessful bail applications before a
magistrate court, respectively on 15 June 2006, 15 October
2007 and
21 November 2008. The third bail application was brought on the
grounds that there were new facts. However, as indicated
already, the
third application was equally unsuccessful. The appellant then
approached this court on appeal against the decision
refusing bail
for the third time. I however found against the appellant and
dismissed his appeal and refused to release him on
bail. He now seeks
leave to appeal the latter decision.
[2]
The appellant was arrested in respect of various serious offences
falling under schedule 6, which include, inter alia, 4 (four)
armed
robbery with aggravating circumstance as defined in s1 of Act 51 of
1977 and read with
s51(2)
,
52
(2) and
52B
of the
Criminal Law
Amendment Act 105 of 1997
; 3 (three) kidnapping charges; 3 (three)
motor vehicle theft, 2 (two) attempted murder charges.
[3]
The attack against the dismissal of his bail appeal by this Court,
are that this Court misdirected itself, inter alia, in failing
to
have regard to the wider interpretation of
section 65(4)
of the
Criminal Procedure Act 51 of 1977
, as stated in S v Porthen and
Others
1
and not examining whether the facts relied upon by the appellant were
new and relevant for purposes of being entertained in the
bail
application.
[4]
The appellant further contends that this Court erred and misdirected
itself in not having regard to section 28 (2) of the Constitution,
which guarantees the constitutionally protected right to family and
parental care and emphasises that Courts, as upper guardian
of the
minor children, must ensure full compliance and protection of these
rights. In this regard reliance is made of S v Petersen
2
.
[5]
Further ground is that this Court erred and misdirected itself in
refusing bail without making a finding on whether any of the
subsections in 60 (4) (a)-(d) of the Act were applicable against the
appellant.
[6]
The applicant further contended that this Court erred and misdirected
itself in elevating its personal views against the Constitutionally
enshrined right of the appellant to be presumed innocent until proven
guilty. I will in due course refer to the relevant remarks.
[7]
The State strenuously argued against the application for leave to
appeal, contending, inter alia, that there are no prospects
of
another court coming to a different conclusion and find that the
appellant should be released on bail.
[8]
After both the appellant and the State made their submissions, the
Court requested both legal representatives for the respective
parties
to advise Court in writing of certain aspects. The National
Prosecutions Service per letter dated 18 October 2011, has
since
responded to the queries of the Court.
[9]
The relevant facts that have since been placed before the Court per
the aforesaid letter, that the State has since lead 45 witnesses;
The
matter has since been postponed to 30 November 2011 for formal
evidence of the last two State witnesses, where after the State
will
close its case; during 2010 all the case dockets as well as the
prosecutor's notes
disappeared
from her office at the Magistrate Court, Pretoria. There was further
delay as a result of the complexity and long duration
of the trial in
having transcription of the record. The Registrar of the Supreme
Court has advised the legal representatives of
the appellant that
bail matters are treated as urgent at the SCA.
[10]
Although the issues in the last paragraph, are not relevant in the
consideration of an application for leave to appeal. I,
however,
sought this information, so that I can know whether, granting leave
to appeal would not be academic, in the sense that,
in the event I
were to grant leave to appeal, the finalization of appeal might have
been overtaken by the finality of the trial.
What is, however, course
for concern, is the seemingly inordinate delay in finalizing the
case, after the appellant was arrested
4 (four) years ago. This fact,
in my view, should be factored in the consideration of whether leave
to appeal should be granted.
[11]
I am conscious of the fact that in an application for leave to
appeal, the question is whether another court might arrive at
a
different conclusion.
[12]
In the matter of S v Barber
3
,
in respect of an appeal against the refusal by the magistrate, the
test is whether the magistrate exercised his discretion properly.
The
Court of appeal must not impose its view, as if it is that of the
magistrate.
[13]
This Court, in dismissing the appellant's appeal, remarked as
follows: "[25] Expressing a personal opinion, I am of the
considered view that bail in cases where a person is facing a
multitude counts of charges, bail should not be lightly granted.
There is, in my view, a need to force a paradigm shift on the mind of
the citizenry as a whole, to accept that criminal activity,
especially wholesale criminal activity will no longer be tolerated
and bail will not be granted under these circumstances."
[14]
Another court, reading this statement, might come to the conclusion,
that, the Court did not dispassionately consider the appeal
before
it, but in arriving at its decision, was blurred by its strong views
as reflected by its comments, which is not conceded,
and under the
circumstances might arrive at a different conclusion. I am of the
view that, this application for leave to appeal
can be disposed off
only on the ground dealt with herein above. In the premises, I deem
it not necessary to traverse the rest of
the other grounds advanced
by the applicant.
[15]
In the circumstances, I am of the view that it is proper that leave
to appeal should be granted.
[16]
In the result the following order is made:
1.
That leave to appeal to the Supreme Court of Appeal, against this
Court's decision on 22 December 2010, dismissing the appeal
of the
appellant against the decision of the magistrate, Mr. Makgoba on 26
October 2010, is granted.
N.M
MAVUNDLA
Heard
on 12 October 2011.
Delivered
on 21 October 2011.
JUDGE
OF THE HIGH COURT
APPELLANT'S
COUNSEL ; ADV M LEDWABA
RESPONDENT'S
COUNSEL : ADV P VORSTER
1
2004
(2) SACR 242
(par 16 at 249b)
2
2008 (2) SACR 356
(C)
3
1979
(4) SA 218
(D & CLD) at 220 E-G6