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[2016] ZAECPEHC 34
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Sogqokomashe and Another v S (CA&R07/2016) [2016] ZAECPEHC 34 (11 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: CA&R 07/2016
In
the matter between:
NDIPHE
SOGQOKOMASHE
First Appellant
MSINDISI
BHEBHULA
Second Appellant
And
THE
STATE
Respondent
JUDGMENT
– BAIL APPEAL
BESHE
J:
[1]
This is an appeal against the refusal of bail by the Magistrate,
Motherwell, Port Elizabeth. The appellants together with three
others
stand accused of complicity in the murder of
Ms
Nomatamsanqa Tsitsi
(deceased)
on the 12 November 2015. The deceased was a police officer (South
African Police Services member). At the time of her
demise, she was
married to accused number 5 in the matter,
Mlungisi
Tsitsi
. The couple
was experiencing marital problems at the time and were thus living
separately. The state alleges that
Mlungisi
Tsitsi
(deceased’s husband) made a confession wherein he implicated
his co-accused persons. It is further alleged that first appellant
is
also linked by telephone records which indicate that he had several
telephone conversations with
Tsitsi
.
This occurred on dates that preceded the murder, on the date of the
murder and a few minutes after the murder in question. The
allegation
against first appellant is that he is the one who procured the
assassins, the motor vehicle used as well as the weapon
used. To this
end, it is alleged that he had several telephone contact with the
killers / assassins.
[2]
The evidence implicating second appellant is alleged to be the
following:
He
is implicated by one of his co-accused persons
Thembani
Rorwana
in his
confession. He also made a statement to the police and made certain
admissions relating to the motor vehicle used in the
commission of
the offence. A report pertaining to the tracking device of the
vehicle in question is still awaited. He is also implicated
by
cellular phone records. It was also alleged that the cellular phones
of the accused persons in the matter had been sent to the
Cyber Crime
Unit for further analysis.
[3]
From the aforegoing, it is clear that the offence in respect of which
the appellants and their co-accused are charged is a
Schedule 6
offence in that the murder in question was committed by a group of
people who were acting in concert in execution of a common purpose.
The deceased was a law enforcement officer who was waylaid on her way
from work. For the purposes of bail application by an accused,
the
provisions of
Section 60 (11) (a) of the Criminal Procedure Act 51
of 1977
(the Act) are applicable. The relevant part of
Section
60
of the Act provides that:
“
(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.”
[4]
In applying for bail in the court
a quo
the appellants
contended that there were exceptional circumstances which in the
interest of justice permitted their release. This
was by means of
affidavits placed before the court
a quo
on their behalf.
First appellant’s affidavit reads as follows:
“
I,
the undersigned Ndiphe Soqokomashe, here make oath and state as
follows:
I am the
applicant before the Honourable Court. I am accused no. 1 in the
matter.
I am 46 years
of age. I was born in the Port Elizabeth area of jurisdiction. I do
not have a passport.
I reside in
M. S., [....], Motherwell. I reside here for 19 years. No. [....] M.
S. is a tavern. It is registered under my name.
I am the owner of
this tavern.
No. [....] M.
S. is a house. I reside in this house with my wife and three
children.
At no.210 is
a shop in Mandela Street, I am also the owner of the shop. I sell
electricity and groceries at the shop.
There is also
a Standard Bank and an Absa Bank teller machine at my shop.
The tavern
was a RDP house, I converted it into a tavern. No. [....] M. S. was
also a RDP house which I extended. I currently live
in it with my
family. The shop situated at no.210 Mandela Street I built myself. I
own the three properties. The tavern and the
shop is on my name. The
house I left on the name of the previous owner. I also own a tavern
in Peddie. My brother runs the tavern,
but it is on my name.
I generate
about plus minus R24 000.00 per month with my businesses.
My wife
assist in running the shop and tavern. My wife cannot run both the
tavern and shop in Mandela Street by herself and while
I am in
custody the business is struggling.
In the tavern
I employ three persons and in the shop I also employ three persons
who are dependent on me.
I am married
and I have been married since year 2002. I have three minor children
with my wife. My children is 2 years, 13 years
and 18 years old
respectively.
The children
are all dependent on me financially. I also have another child out of
wedlock. The child is 18 years old. The child
lives in Knysna and I
maintain the child financially.
I wish to
state that my tavern is also a club. It operates on Friday and
Saturday from 10.00 in the morning up until 04.00 the next
morning.
On Sundays up until Thursday it runs from 10.00 in the morning up
until 2h00 the next morning. My shop is open from 07h00
in the
morning until 10.00 in the evening that is 22h00 every day of the
week.
If I am
granted bail I can abide by any bail conditions set by the Court,
including 24-hours house arrest.
I am also
willing to report every single day of the week at the Motherwell
Police Station.
If I am
granted bail I will not endanger the safety of the public or any
particular person.
I will not
commit any offences.
I will not
attempt to evade my trial.
I will not
attempt to influence or intimidate witnesses or conceal or destroy
evidence relating to this or any other offence.
I will not
undermine or jeopardise the objectives of the proper functioning of
the criminal justice system, including the bail system.
I will not
disturb the public order or undermine the public peace or security.
I have no
pending cases against me.
I recall a
previous conviction of robbery.
I am not sure
of the exact date of the previous conviction. I can recall I received
a short-term imprisonment. I can recall it was
a year.
I am going to
plead not guilty to the charge against me.
I do not wish
to deal with the merits of my defence during my bail application.
I can
afford R3 000.00 for bail and I submit there is exceptional
circumstances, which in the interest of justice will permit my
release on bail.”
[5]
Second appellant’s affidavit appears at page 31 onwards of the
record and reads as follows:
“
I,
Msindisi Bhebhula, an adult male 25 years old declare under oath as
follows:
I am an
accused in case 70/959/2015. I am aware of the charge against me. I
understand it and intend pleading not guilty.
I reside at
no. [....] M. S., [.....], Motherwell, Port Elizabeth for the
past 25 years. I reside with my father, sister and
niece. My sister
is unemployed and I help to support her.
I am not
married, but I have two children. I have a boy and a girl both 2
years old from different mothers. I pay support of R1 000.00
per
child out of my own. I also help support my niece.
I work at
Transnet for the past plus minus 3 years and earn between R13 000.00
and R18 000.00 per month, depending on
the amount of overtime
that I work. my basic salary is R13 000.00 per month. I work as
a specialised driver and work overtime
on a regular basis. Proof of
my salary is attached as Annexure A.
I
just want to mention Your Worship it is an oldish one, it is one that
the family could find at his place where they stay, Your
Worship.
“
I
do not own fixed property, but have bought a vehicle for the amount
of R178 500.00 during 2014. The above vehicle is financed
by
Absa and my instalments are R4 200.00 per month as per attached
tax invoice marked Annexure B.
If I am not
released on bail I would not be able to pay my instalments on my
vehicle as I would not be able to work and it would
be repossessed by
the bank.
I will
confirm that should I be released on bail I will comply with the
following conditions and I have been informed by my attorney
of the
consequences of failing to comply therewith:
I will not
endanger the safe of the public or any particular person.
I will not
commit any offences.
I will not
evade my trial.
I will not
attempt to influence or intimidate witness or conceal or destroy
evidence relating to this or any other offence.
I will not
undermine or jeopardise the objectives or the proper functioning of
the criminal justice system, including the bail system.
My release
will not disturb the public order or undermine the public peace or
security.
I have no
warrants out for my arrest and I have never escaped from lawful
custody.
I do not have
pending cases, nor any previous convictions and have been informed by
my attorney of the consequences of failing to
disclose any of the
above.
If I am not
released on bail I shall be prejudiced in that I would lose my job at
Transnet resulting in me not being able to support
my children. Lose
my vehicle as stated above to a point and paid for the defence of
this case.
I do not own
a passport and has never travelled abroad.
If this Court
grants me bail under strict bail conditions I will adhere to all such
conditions.
I do not wish
to disclose the basis of my defence at this stage and I will do so at
trial.
I have been
in custody since November 2015.
I will be
able to raise the sum of R5 000.00 should bail be granted to me.
I submit there is exceptional circumstances that
permit my release on
bail.
I wish
to add that on the day of my arrest I was at a funeral and was called
by the police to come home. I went home and was arrested
for this
case. I never tried to evade my arrest.”
[6]
It was submitted on behalf of the first appellant that he was not a
flight risk and that his business is suffering because his
wife is
not coping with the running thereof without his assistance. That he
had been in custody for four months at that stage.
It was also argued
that there was not a strong case against the first appellant.
Mr
Van Rensburg
who
represented the first appellant in the court
a
quo
, assailed the
investigating officer’s evidence on the ground that he did not
give any factual basis for saying there is a
strong case or there is
evidence implicating the appellant in the commission of the offence.
He may have been implicated in a confession
by one or more of his
co-accused but such confession or confessions are not admissible
against him. Further that the fact that
he had spoken with his
co-accused telephonically does not mean he was involved in the plan
to and the actual murder of the deceased.
[7]
Mr Roelofse
who was acting for the second appellant argued that the fact that the
appellant co-operated with the police and did not try and
evade his
arrest should be regarded as an exceptional circumstance. He
submitted that there was no evidence that second appellant
is a
flight risk or that he will interfere with state witnesses. It was
argued on second appellant’s behalf that the case
against him
was of a circumstantial nature.
[8]
In what appears to be a carefully considered and detailed judgment,
the court
a quo
found that appellants’ personal
circumstances pertaining to their business interest and employment
did not present any exceptional
circumstances. The Magistrate also
found that the strength of the case against the appellants is but one
of factors to be taken
into account. That, however the appellants
have not succeeded in showing that the case against them is
exceptionally weak and that
they will most likely be acquitted. The
learned Magistrate concluded that:
“
Upon
consideration of the totality of the evidence placed before this
court and the accumulative effect of all the relevant facts
and
circumstances and upon weighing the interest of justice against the
appellants personal circumstances and the possible prejudice
that
they might suffer the court finds that there is nothing unusual or
exceptional about the appellants personal circumstances
and that the
appellants have failed to discharge the onus placed upon them to
satisfy this court on a balance of probabilities
that exceptional
circumstances exist which in the interest of justice permit their
release. Bail is accordingly
DENIED
.”
[9]
The Magistrate’s decision is assailed on a number of grounds,
inter alia
:
That
the court misdirected itself in finding that there is a likelihood
that the appellants will interfere with the investigations
and or
conceal or destroy evidence a d or interfere with witnesses should
they be granted bail. In this regard, the learned Magistrate
remarked
as follows:
“
The
following aspect to be considered is
Sect. 60(4)
of the
Criminal
Procedure Act 51 of 77
read with Set. 60(7) of the
Criminal Procedure
Act where
the court has to consider whether there is a likelihood
that if the accused, if they were to be released on bail will attempt
to
interfere with or intimidate witnesses or to conceal or destroy
evidence bearing in mind that the investigation is not complete.
As
the firearm is still missing, one suspect is still not arrested and
the state is still awaiting certain reports and specific
reference to
the cellphone reports there is my view a likelihood that the
appellants will interfere with the investigation and
or conceal and
or destroy evidence and or interfere with witnesses should they be
released on bail.”
[10]
I can find no fault with the Magistrate’s reasoning in this
regard.
[11]
It is further contended that the Magistrate in the court
a
quo
misdirected
herself in failing to find that the fact that the cellular telephone
conversations between their other co-accused and
alleged assassins,
the possession by second appellant at some stage of the motor vehicle
used in the commission of the crime, does
not prove that the
appellants were involved in the commission of the offence.
[12]
It is trite that a court hearing an appeal against the refusal of
bail will not set aside the decision against which the appeal
is
brought, unless such court is satisfied that the decision was
wrong.
[1]
[13]
Apart from attacking the strength of the case against the appellants
in argument on the basis
inter alia
that a confession by one
accused person is not admissible against another, and assailing the
admissibility of the confessions or
statements, the appellants did
not show or produce any evidence on a balance of probabilities that
there is real likelihood that
they will be acquitted. See in this
regard
S v Mathebula
2010 (1) SACR 55
SCA at 59 paragraph 12
where the following was stated:
“
But
a State case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test.
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be acquitted of the charge:
S
v Botha en ‘n Ander
2002 (1) SACR
222
(SCA)
(222 (2) SA 680
;
[2002] 2 All SA 577)
at 230
h
,
232
c
,
S
v Viljoen
2002 (2) SACR 550
(SCA)
([2002]
4 All SA 10)
at 556
c
.
That is no mean task, the more especially as an innocent person
cannot be expected to have insight into matters in which he was
involved only on the periphery or perhaps not at all. But the State
is not obliged to show its hand in advance, at least not before
the
time when the contents of the docket must be made available to the
defence; as to which see
Shabalala and
Others v Attorney-General, Transvaal, And Another
[1995] ZACC 12
;
1995
(2) SACR 761
(CC)
(1996 (1) SA 725
;
1995 (12) BCLR 1593).
Nor is an
attack on the prosecution case at all necessary to discharge the
onus; the applicant who chooses to follow that route
must make his
own way and not expect to have it cleared before him. Thus it has
been held that until an applicant has set up a
prima facie case of
the prosecution failing there is no call on the State to rebut his
evidence to that effect.”
[14]
In argument before me
Mr
Dauberman
for the
appellants submitted that the state did show its hand its hand in
advance in this matter. From what the state disclosed
it is apparent,
so he argued, that the case against the appellants was a weak one.
[15]
It was rightly pointed out by the Magistrate in her judgment that
“
it
is not the duty of the court considering the bail application to make
a provisional finding of guilt but to assess the prima
facie strength
of the state’s case against the applicant’s case”
.
[16]
In my view it cannot be said that the state’s case against the
appellants, albeit being of a circumstantial nature, is
of such a
weak standard that it amounts to an exceptional circumstance which is
the interest of justice permits the release of
the appellants on
bail. The appellants have not succeeded in showing on a balance of
probabilities that it is so.
[17]
I am unable to find that the Magistrate’s decision to deny the
appellants’ bail was wrong. In the result the appeal
must fail.
[18]
The following order will issue:
The
appeal is dismissed.
_______________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Appellants :
Mr P Daubermann
Instructed
by
:
PETER
DAUBERMANN ATTORNEYS
Room 8, Third
Floor, Old FNB Building
Graham
Street, North End
PORT
ELIZABETH
Ref.: Mr
Daubermann
Tel.: 082
5533 710
For
the Respondent :
Adv: Mnyani
Instructed
by
:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
18
Grahamstown Road
Wool House
Building
North End
PORT
ELIZABETH
Ref.: Mr
Mnyani
Tel.: 012 –
842 1452
Date
Heard
:
7 July
2016
Date
Reserved
:
7 July
2016
Date
Delivered
:
11
August 2016
[1]
Section 65
(4) of the
Criminal Procedure Act 51
of 1977
.