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[2018] ZAECPEHC 53
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Nqaba v S (CC27/2016) [2018] ZAECPEHC 53 (11 October 2018)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, PORT
ELIZABETH
In the matter between:
CASE
NO: CC 27 /2016
CHARLES NQABA
Applicant
And
THE
STATE Respondent
Coram:
Goosen J
Heard:
3 October 2018
Delivered:
11 October 2018
JUDGMENT
GOOSEN, J.
[1]
The
applicant was charged with and convicted, on 22 March 2017, of
murder; attempted murder; unlawful possession of a firearm in
contravention of s 3 of the
Firearms
Control Act
[1]
;
and unlawful possession of ammunition in contravention of s 90 of the
Firearms
Control Act
.
On 19 April 2017 he was sentenced to eighteen years’
imprisonment for the murder; ten years’ imprisonment for
the
attempted murder; fifteen years’ imprisonment and ten years’
imprisonment respectively for the unlawful possession
of a firearm
and ammunition. The sentences were ordered to be served concurrently.
[2]
The
trial was presided over by Tshiki J. On 1 June 2017 the learned trial
judge granted leave to appeal against the convictions
and sentences
to the full Court of this Division.
[3]
The
applicant now applies to be admitted to bail pending the appeal. The
application commenced on 6 June 2018.
[2]
It appears that there was some delay in the prosecution of the
application since the matter was first enrolled for hearing on 19
September 2018. On that date the matter was removed from the roll,
apparently because the record of the trial proceedings was not
filed.
It was thereafter enrolled for hearing, before this Court, on 3
October 2018. The record had still not been filed. A copy
was however
made available at the hearing and then proceeded on that basis.
[4]
At
the outset it is to be recorded that the learned trial judge, Tshiki
J, has, subsequent to him presiding at the trial, become
indisposed
due to illness and has been unable to perform his judicial duties.
Ordinarily it is for the trial judge, who has been
steeped in the
trial of the case, to adjudicate an application for bail pending an
appeal against his or her judgment.
[3]
In the present circumstances that is not possible. Given the nature
of the application, it is in the interests of justice that
the
application be considered by this Court. Neither party,
understandably, raised any objection thereto.
[5]
The
applicant filed an affidavit in support of the application for bail
in terms of s 321 of the
Criminal
Procedure Act
.
He also tendered
viva
voce
evidence
and presented the evidence of his father, Mr
Charles
Nqaba
Snr (Mr Nqaba Snr), in support of his application. The state, in
opposing the application, presented the evidence of the investigating
officer, Warrant Officer,
Twane
.
[6]
The
applicant’s affidavit asserts that he has no previous
convictions or any cases pending against him; that he has no passport
and is therefore not a flight risk. He alleges that in the event that
he be granted bail he will not endanger the public; attempt
to evade
his trial; attempt to influence or intimidate witnesses or undermine
or jeopardize the function of the criminal justice
system. These
latter allegations, more particular those relating to evasion of
trial and the intimidation of witnesses have, of
course, no bearing
on the present application.
[7]
He
states further, in the affidavit, that exceptional circumstances
exist which establish that it is in the interests of justice
that he
be released on bail. These, it is submitted, are to be found in the
fact that his co-accused was acquitted of the charges;
that during
his trial he was granted bail and that he attended the trial; and
that he was granted leave to appeal against
his conviction. He
further alleges that financial constraints brought about by his
incarceration have impacted his ability to secure
legal
representation which he requires and that it is unlikely that his
appeal, which has been prosecuted, will be heard before
the end of
this year.
[8]
In
his
viva
voce
evidence the applicant confirmed the contents of his affidavit. He
also explained that he is the father of a young disabled child
and
that, prior to his incarceration, he provided financial support to
the child whenever he was able to do so. He stated that
in the event
that he was admitted to bail, the bail money would be paid by his
father and that he would reside with his parents.
He stated that he
would present himself to the prison authorities should his appeal be
unsuccessful and that he would comply with
any condition imposed by
the Court in granting him bail.
[9]
In
cross-examination he conceded that his child lives with the child’s
mother and that this situation has continued since
his incarceration.
Prior to his incarceration he provided financial support as and when
he was able to do so from earnings he secured
as a taxi driver. He
stated that he wanted to be released on bail so that he could proceed
with his life and that prison was not
a pleasant place.
[10]
Mr
Nqaba
(Snr) testified that the applicant had been residing with him and his
wife and that, in the event that he was released on bail,
he would
stay with them. He explained that he, that is Mr
Nqaba
(Snr), had provided financial support for the applicant’s child
as he had done throughout. He said that he is employed and
that he
would be in a position to post bail should the Court release the
applicant on bail.
[11]
Warrant
Officer Twane
testified
about the nature of the case and its seriousness. He explained that
the offences had been committed in the context of
several hijackings
or robberies of business delivery vehicles in certain township areas.
In this instance the deceased was an off-duty
policeman who was
providing escort and protection services to delivery vehicles.
[12]
He
explained that at the trial the evidence was that a police patrol had
come upon the scene during the commission of the offences.
The
applicant had been identified by the police officer as the person
responsible for shooting the deceased and thereafter shooting
at the
police officers. The applicant had fled on foot and then made a
getaway in a motor vehicle. The police patrol had found
the vehicle
and the applicant a short distance from the crime scene immediately
thereafter.
[13]
Based
on this brief outline of the nature of the case against the applicant
he stated that the offences are very serious. This was
reflected in
the sentence which had been imposed by the trial court. He stated
that in the event that the applicant was released
on bail there was a
real risk that he would seek to evade justice in the event that the
appeal was unsuccessful.
[14]
In
terms of s 321 of the Act, the sentence imposed by a superior court
is not suspended by prosecution of an appeal unless the trial
court
“
thinks
it fit
”
to release the accused on bail. In doing so the trial court exercises
a discretion in the interests of justice.
[15]
As
noted in
S
v Masoanganye and Another
[4]
,
Since an appeal requires
leave to appeal which, in turn, implies that the fact that there are
reasonable chances of success on appeal,
is on its own not sufficient
to entitle a convicted person to bail pending appeal :
R v Mthembu
1961 (3) SA 468
(D) at 471A-C. What is of more importance is the
seriousness of the crime, the risk of flight, real prospects of
success on conviction,
and real prospects that custodial sentence may
be imposed.
[16]
There
is, in this matter, no prospect that a non-custodial sentence would
be imposed in the event that the convictions are confirmed
on appeal.
Nor, that such custodial sentence as would be imposed would exceed
the period for which the applicant would be detained
pending the
appeal.
[17]
That
leaves consideration of whether there are real prospects of success
in the appeal against the convictions; the seriousness
of the crime
and the risk that the applicant, if released, would not serve his
sentence if the appeal is dismissed.
[18]
The
applicant’s application is silent in relation to the existence
of real prospects of success on appeal. It appears that
the
application was prosecuted on the basis that since leave to appeal
was granted by the trial court nothing further need be established,
save that there are other considerations which establish exceptional
circumstances in the interests of justice. This approach,
as
indicated in the authorities referred to, is incorrect. The applicant
must show that there is a real prospect of success in
relation to the
convictions.
[19]
In
order to assess the prospects of success it is necessary to have
regard to the findings made by the court
a
quo
and the evidence presented at the trial upon which those findings are
based. It is to be emphasised however that in undertaking
this
exercise, this Court is not required to examine the record of
evidence with the disposition of an appeal court. It would,
in any
event, be inappropriate to deal with matters which will be subject to
adjudication by the court of appeal in due course.
All that is
required is that the court consider the nature of the evidence
presented at trial and the trial court’s findings
to determine
whether there is a real prospect that the appeal against convictions
will succeed.
[20]
Regrettably
the trial court’s reasons for granting leave to appeal are not
contained in the record made available by the applicant.
There is
also no judgment setting out those reasons in the court file. It is
accordingly not possible to determine what the trial
court considered
to be the basis for finding that there is a reasonable prospect of
success justifying the granting of leave to
appeal. The order
granting leave to appeal is to be viewed against the backdrop of a
finding made by the trial court in its main
judgment, that the
evidence against the applicant presented by the state was
“
overwhelming
”.
This finding was based upon the acceptance of the evidence of the
policeman on patrol who witnessed the shooting of the
deceased who
identified the applicant by the clothes he was wearing. This included
a black cap. A black cap was retrieved from
the Ford Fiesta vehicle
in which the suspect attempted to make his escape. It was linked to
the applicant by DNA analysis, the
evidence of which is contained in
formal admissions made by the applicant at trial.
[21]
The
trial court also admitted into evidence the content of a statement
made by the applicant to a commissioned officer, following
a trial
within a trial. Although the content of that statement does not place
the applicant at the scene of the shooting, it implicates
the
applicant in a plan to commit a hijacking style robbery of the
delivery truck in the role of driver of the getaway vehicle.
[22]
In
argument before this court it was submitted that the trial court had
failed to take into account the effect of a negative result
of a
primer residue test conducted on the applicant after his arrest. This
evidence, it was argued, indicated that the applicant
had not
discharged a firearm.
[23]
In my
view the evidence is to be considered in its totality and the trial
court’s findings in relation to the nature and probative
value
of the evidence before it must be given due and proper weight. As
indicated, it was the trial court’s finding that
the accepted
evidence overwhelmingly pointed to the applicant’s guilt.
The trial court rejected the applicant’s
version that he had
taken the Ford Fiesta vehicle, which belonged to his co-accused, to a
car wash to have it cleaned and that
he was arrested while at the car
wash.
[24]
The
applicant’s appeal is prosecuted upon three essential grounds,
namely that the court
a
quo
erred in accepting the identification evidence of the police officer;
that the court erred in admitting the ‘
confession’
and that in any event the ‘
confession’
establishes only an admission of involvement in conspiracy to commit
robbery; and that the court misdirected itself as to the facts.
It is
to be accepted that the trial court, for reasons not available to
this court, considered that there was a reasonable prospect
of
success on appeal. As already indicated however, more must be
established.
[25]
The
applicant did not deal with the prospects of success and did not,
either in evidence or argument, seek to demonstrate with reference
to
the record of evidence that there is a real prospect that the
convictions will be overturned on appeal. In my view this is
dispositive of the application. In any event, having regard to the
basis upon which the applicant premised his application for bail,
I
am unable to conclude that the interests of justice weigh in favour
of admitting the applicant to bail pending the appeal.
[26]
The
principal basis upon which the applicant seeks bail is that, having
been admitted to bail during his trial, he poses no flight
risk. The
fact that the applicant attended the trial whilst on bail certainly
weighs in his favour. However, the circumstances
have significantly
changed by virtue of the conviction and sentence of the applicant. He
now knows his fate. That involves a very
lengthy period of
imprisonment in circumstances which he describes as unpleasant. His
desire to be admitted to bail is motivated
by wishing to continue
with his life. In my view, the lengthy period of imprisonment, which
faces the applicant in consequence
of his conviction, carries with it
an inherent risk of flight. Although the applicant tendered
acceptance of such bail conditions
as the court may impose the bail
money is to be provided by applicant’s father, and the
imposition of reporting conditions
will not, in my view, mitigate the
risk.
[27]
The
particular circumstances upon which the applicant relies, namely that
he has a disabled child whom he is supporting and the
discomfort and
constraints imposed by the rigours of incarceration, are not, in my
view, exceptional. It transpired from the evidence
of Mr
Nqaba
(Snr) that financial support for the disabled child had always been
provided by him and not the applicant; that the applicant is
dependent upon his father for support; and that the disabled child
resides with and is cared for by her mother with only occasional
support from the applicant prior to his incarceration.
[28]
These
circumstances are not exceptional. They do not, in the absence of
very real prospects of success in the appeal against conviction,
warrant a finding that it will be in the interests of justice that
the applicant be admitted to bail.
[29]
I
accordingly make the following order:
The application is dismissed.
G. G. GOOSEN
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant:
Adv. B. C. Harker
Instructed by
Bezuidenhout Attorneys
12 Buckingham
Rd, Mill Park, Port Elizabeth
For the Respondent
Adv. M.
September
Director of
Public Prosecutions
Uitenhage Road,
North End, Port Elizabeth
Tel: (012) 842
1400
[1]
Act No, 60 of 2000
[2]
The applicant did
not apply to the trial court after leave to appeal was granted for
an extension of his bail pending the finalisation
of the appeal.
[3]
See s 321 of the
Criminal Procedure Act, Act 51 of 1977
[4]
2012 (1) SACR 292
(SCA) at par [14]; see also
Oosthuizen
and Another v S
(144/2018)
[2018] ZASCA 92
(1 June 2018)