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[2017] ZAECPEHC 20
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Nkombisa and Others v S (CA&R04/2017) [2017] ZAECPEHC 20 (2 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: CA&R
04/2017
Date
Heard: 23/02/2017
Date
Delivered: 02/03/17
In
the matter between:
MELUMZI
CHRISTIAN NKOMBISA
First
Appellant
LAWRENCE
MZWANELE NGESE
Second
Appellant
ANESIPHO
TYIKI
Third
Appellant
MZIYANDA
FENI
Fourth
Appellant
and
THE
STATE
Respondent
JUDGEMENT
MALUSI
J:
[1]
This is an appeal against a decision by the Magistrate for the
district of Port Elizabeth to dismiss the appellants’
application to be released on bail. Each of the appellants is charged
with reckless or negligent driving, possession of suspected
stolen
property, possession or use of drugs and possession of vehicle
breaking or housebreaking implements.
[2]
On 12 January 2017 at the start of the bail application in the court
a
quo
both the public prosecutor and the appellants’ attorney
submitted that the offences faced by the appellants were referred
to
in Schedule 5 of the Criminal Procedure Act (the Act). The
basis of the submission was that the appellants either had
previous
convictions or were out on bail in cases involving Schedule 1
offences. That fact caused the present offences which
were all
assumed to be Schedule 1 to fall into a Schedule 5 category. I
will return to this aspect later.
[3]
Section 60(11) of the Act provides:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to –
(a)
.
. . .
(b)
In
Schedule 5, but not 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 the interests of justice permit his or her release”.
[4]
It is axiomatic that section 60(11)(b) places an onus on an applicant
to satisfy the court on a balance of probabilities that
the interests
of justice permit his release. Likewise, the duty to begin is
on the applicant as he must discharge the onus.
It is clear
from the record that the bail application proceeded on this basis.
[5]
Each of the four appellants deposed to an affidavit in an attempt to
discharge the onus placed on them. The affidavits
are on a
standard form with blank spaces for the appellants to complete their
personal particulars. Thus, all four affidavits
have the same
averments with only the personal particulars of each appellant being
different.
[6]
The first appellant averred in his affidavit that he had been
residing at [...] A. S., New Brighton for the last thirty three
years. He is single with five children. Two of the
children reside with him, attend school and he pays their fees.
He ostentatiously styled himself the Managing Director of MC & A
Trading, an events management entity. He earns on average
the
sum of R3500.00 per month depending on events. He disclosed
that he has one pending case of theft out of motor vehicle
which is
postponed to 6 March 2017. He has been released on his own
cognisance in that case. He alleged the State does
not have a
strong case against him and he will be acquitted in that matter.
He further disclosed that he has four previous
convictions. It
appears from the form SAP69 to which he referred that he has three
previous convictions for theft and one
for possession of a firearm.
[7]
The second appellant averred in an affidavit that he has resided at
[...] P. S., NU3, Motherwell for the past twenty five years.
He
is single, with two children aged twenty one years and eight years.
Only the younger child still attends school though
he is maintaining
both children. He was employed on a temporary basis as a driver
at AVBOB for the six months preceding his
arrest. On average he
earns a salary of R1500.00 per month. He disclosed that he has
one pending case against him in
which he was released on R500.00
bail. The charge he is facing in that case is theft out of
motor vehicle. The state
case against him is weak and he will
be acquitted in that matter. He has eleven previous convictions
for theft and one for
use of a motor vehicle without the owner’s
consent. He averred the State case against him is weak and he
will be acquitted
in that matter.
[8]
The third appellant has resided all his life at [...] N. S.,
KwaZakhele. He is single and has no children. He has
been
employed for the nine months anteceding his arrest at Mthura
Breakdown as a general labourer. He earns approximately
R1800.00 per month. He disclosed three pending cases:
possession of a firearm wherein he was released on bail of R5000.00;
theft wherein released on bail of R5000.00; and “reckless
driving” wherein released on his own cognisance. He
has
no previous conviction.
[9]
The fourth appellant has been residing at [...] D. S., New Brighton
all his life. He is single with four minor children,
the three
younger ones all reside with him. He is responsible for the
maintenance of all his children. He is self-employed
as a
clothes merchant earning on average a sum of approximately R3000.00
per month. He has engaged in this trade for the
three years
preceding his arrest. He has one pending case wherein he was
released on bail of R500.00. He alleged the
State case against
him is weak and he will be acquitted in that matter. He
disclosed three previous convictions for theft.
[10]
Each of the appellants regurgitated verbatim the grounds for refusal
of bail listed in section 60(4) of the Act and undertook
not to
breach any of the grounds. Each of them also denied having any
warrants of arrest. Each appellant indicated
an intention to
plead not guilty to the charges. They all denied that the State
has a strong case against them.
[11]
The State submitted an affidavit by the investigating officer.
The appellants’ vehicle was noticed by the
police officers on
patrol as it was driven at high speed. The appellants’
vehicle overtook three other motor vehicles
which were stationery at
a robot controlled intersection with the red light against them.
She stated that the appellants
were arrested after being chased by
the police who were in a marked vehicle with a blue lamp turned on.
[12]
The reason she opposed the release of the appellants was that they
all had pending cases and previous convictions.
She confirmed
the pending case of theft in Oudtshoorn disclosed by the first,
second and third appellants. She further alleged
these
appellants have a pending case in Cambridge, East London. She
confirmed the three pending cases disclosed by the third
appellant
but disclosed a fourth one. She opined that the appellants were
busy committing crimes whilst on bail and will
continue to do so.
She averred the appellants simply change names, surnames and dates of
birth every time they have been
arrested.
[13]
The magistrate reserved judgment for delivery the next day. On
resumption the magistrate requested further information
as she was
entitled to do in terms of section 60(3) of the Act.
[14]
The investigating officer provided a further affidavit setting out in
detail which items were allegedly found on each
of the appellants.
She attached a copy of the police exhibits register. She
further disclosed that the case in Cambridge,
East London was
withdrawn pending the arrest of first appellant. She stated
that she was unable to estimate the quantity
of drugs found on the
appellants. She set out in detail the appellants’
previous convictions and their pending cases.
[15]
Section 65(4) of the Act provides: “
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”.
[16]
The proper approach for the Court hearing the appeal was set out in
S
v Barber
[1]
as follows:
“
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. This 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 an unfair interference with the magistrate’s exercise of
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 but
exercised that discretion wrongly . . .”
[17]
The magistrate gave a comprehensive and reasoned judgment. She
ruled that counts 1, 3 and 4 were not referred to
in Schedule 1.
It was only count 2 which fell under Schedule 5 due to it being a
Schedule 1 offence allegedly committed by
appellants who were either
on bail or having previous convictions.
[18]
The court a quo was placed in an invidious position by the State
regarding the correct Schedule for the offences.
The charge
sheet annexures for all the counts had not been completed by the
public prosecutor. The annexures had been attached
but were
left blank. At the start of the bail application there was
absolutely no information or detail regarding the charges.
It
was hoped, I assume, that the State would provide detail during the
bail hearing to cure this defect. Regrettably, that
did not
occur due to the scanty allegations in the two affidavits by the
investigating officer.
[19]
I am of the view that at the start of the bail hearing the State had
failed to establish the objective jurisdictional
facts which must
exist before section 60(11)(b) could come into operation.
[2]
The appellants should not have started in adducing evidence as there
was no onus on them. All the offences should have
been treated
as Schedule 1 offences. The magistrate was wrong in her ruling
that counts 1, 3 and 4 were not referred to in
Schedule 1.
Indeed they are not mentioned by name in Schedule 1 but it provides:
“
Any
offence, except the offence of escaping from lawful custody . . . ,
the punishment where for may be a period of imprisonment
exceeding
six months without the option of a fine”.
The
relevant statutes for each of the offence in counts 1, 3 and 4
provide the punishment as stated in Schedule 1 above.
[20]
The lack of detail caused confusion throughout the bail hearing.
This persisted even during the appeal hearing.
Mr Wessels, who
appeared for all the appellants submitted that there was no
likelihood of the appellants being convicted on all
the counts as a
prima facie case had not been established at the bail hearing.
His submissions were anchored on the lack
of detail of the charges.
Mr Stander, who appeared for the State, correctly conceded that on
counts 2 and 3 a prima facie
case had not been made out. He
tremulously submitted that on counts 1 and 3 a
prima
facie
case had been made out. I do not agree.
[21]
Regarding count 1, the investigating officer only mentioned in her
second affidavit that the first appellant was the
driver. No
basis has been shown why any of the other appellants were charged
with this count. Even regarding the first
appellant no evidence
is provided why it is alleged he was the driver. A mere allegation
that the police officers who chased the
vehicle occupied by the
appellants saw the first appellant driving or alighting from the
driver’s door would have sufficed.
This is necessary in
this case as there were four people inside the vehicle.
[22]
Regarding count 2 Mr Wessels argued, citing authority, that
unidentified current money is not “goods” within
the
meaning of section 36.
[3]
It was not clear even during the appeal hearing on which of the
counts the State wished to rely for the cellphones, the Audi
key, the
wire and the sparkplugs. Mr Stander correctly conceded this
point.
[23]
A similar paucity of evidence afflicts count 3. The
investigating officer refers to “tik” throughout
her
affidavits. Not once does she make the allegation that she
personally knows or a colleague alleged that this “tik”
is a dependence producing drug. Mr Stander referred to an entry
in the exhibits register annexure which mentions “methamphetamines”.
At no stage did the State rely on this at the hearing. The
annexure was submitted in answer to the query by the magistrate
asking on whom was each item found. It is not allowed for a
party in application proceedings to direct her opponent and the
court
to a particular entry in an annexure and later seek to rely on a
different entry in the annexure without the opponent having
had an
opportunity to answer. I accept that the State at the stage of
a bail hearing need not produce lab results that the
“
tik”
is a dependence producing drug. All that is required is an
allegation to that effect.
[24]
No allegations were made by the State regarding count 4. It was
speculated during the appeal hearing that the wire
found in second
appellants’ underwear related to this charge. But the
State made no such allegation in the bail hearing
and the annexure to
the charge sheet was not completed. Once this analysis of each
count and the evidence relating thereto
is done, the mirage that is
the State case fizzles into thin air.
[25]
It must not be understood that this Court has held that the State
must prove the guilt or innocence of the accused in
the bail
hearings.
[4]
What is
emphasised is that there must be a minimum of facts or allegations
(evidence) at least to establish a
prima
facie
case against an applicant for bail. The paltry evidence
tendered by the state in the bail application falls short of this
requirement. This was exacerbated by the failure to provide the
details in the charge street.
[26]
In my view the magistrate was wrong in her finding that the State has
a strong case. It appears, with respect,
she failed to
critically analyse the evidence before her in relation to the
counts. An example will suffice. She stated
that
“
the
affidavits of the investigating officer clearly indicated that the
applicants led away from the police, drove recklessly by
overtaking
three stationery vehicles at a red robot and when apprehended had a
total of R18000.00, drugs, cellphones, an Audi key,
a sparkplug and
wire in their possession”
(sic).
The
magistrate’s summary of the evidence is wrong in light of the
analysis above.
[27]
I do not deem it necessary to separately consider the grounds for
refusing bail set in section 60(4) as the magistrate
had done.
My strong view is that it will certainly offend against various
rights in the bill of rights enshrined in the Constitution
to detain
the appellants based solely on their propensity to commit Schedule 1
offences in circumstances where the State failed
to present a
prima
facie
case. It certainly will be unjust and against the interests of
justice.
[28]
Each of the appellants has indicated in their respective affidavits
that he may afford R500.00 bail. It appears to me
the usual
appropriate bail conditions will suffice.
[29] In the
circumstances and for the above reason it is ordered.
29.1
The appeal is upheld.
29.2 The order by
the magistrate denying bail to the appellants is set aside.
29.3 Each appellant is
granted bail in the amount of R500.00.
29.4 Each
appellant is warned not to interfere with the investigation by the
State.
___________________
T
MALUSI
Judge
of the High Court
Appearances
Adv
JW Wessels for the appellant’s instructed by SB Maqungu
Attorneys, Port Elizabeth.
Adv
M Stander for the respondent instructed by the: Director of Public
Prosecution, Port Elizabeth.
Date
Heard: 23 February 2017
Date
Delivered: 02 March 2017
[1]
1979(4) SA 218(D) at 220 E-H.
[2]
S v Stanfield
1997
(1) SACR 221
(C);
Gade v State
[2007]
3 ALL SA (NC) at paragraph 5; Commentary on the Criminal Procedure
Act, service 55, 2015, 9-66A to 9-67.
[3]
R v Monyane
1960(3)
SA 20(T);
R v Boshoff
1962(3) SA 175(N).
[4]
In this regard see
S
v Van Wyk
2005(1) SACR 41 (SCA);
S
v Mathebula
2010(1) SACR 55 (SCA) at
paragraph 12.