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[2020] ZAECPEHC 26
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Mabeqa and Another v S (CA&R 07/2020) [2020] ZAECPEHC 26 (28 July 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION – PORT ELIZABETH
REPORTABLE/NOT
REPORTABLE
Case
No: CA&R 07/2020
LUVUYO
MABEQA
First Appellant
LUKHANYO
XEGO
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
The two appellants are appealing against the refusal of bail by the
Magistrate, New
Brighton. Bail was refused on 13 March 2020.
The appellants were arrested on or about 28 November 2019 on a charge
of armed robbery with aggravating circumstances in terms of section 1
of the Criminal Procedure Act 51 of 1977 (the CPA).
The offence
is alleged to have occurred on 27 November 2019. Bail was
opposed by the State on the basis that the offence
fell under
Schedule 6 of the CPA. It was not in dispute in the court below
that the appellants were facing a Schedule 6 offence.
As a
result thereof the onus was on the appellants to prove exceptional
circumstances that necessitated their release on bail.
[2]
In order to discharge the onus both accused elected to testify.
Having heard
the evidence of the investigating officer as well, the
court below dismissed the application. As a consequence
thereof, the
appellants appealed to this court.
B.
Grounds of Appeal
:
[3]
The appellants presented separate applications for leave to appeal.
I shall
consolidate the grounds of appeal as they mostly overlap.
The grounds span over three pages for each appellant. I shall
attempt to summarise them as follows.
·
that the court
a
quo
failed in attacking due weight to
the
viva voce
evidence of the appellants;
·
no plausible evidence was presented by the
State to gainsay the evidence of the appellants;
·
the fact that the complainants failed to
identify the appellants in that he did not provide the description of
the appellants and
his identification of them is suspect having
regard to the circumstances under which he pointed the appellants,
his evidence in
that regard was not corroborated;
·
the court a
quo
erred in not finding out that the State
case was weak and non-existent against the appellants; and
·
that the personal circumstances of the
appellants taken cumulatively constituted exceptional circumstances.
In respect of
the appellant Mr Mabeqa that he has no pending cases;
[4]
The appeal is opposed by the State on various grounds.
C.
The Facts
:
[5]
There are three witnesses who testified before the court
a quo
.
The two appellants testified and the Investigating Officer Warrant,
Officer Cynthia Williams (Warrant Officer Williams).
[6]
Warrant Officer Williams testified that she was 28 years in the South
African Policer
Service (SAPS) and was stationed at Kwadwesi Police
Station. Her evidence is common cause in many respects except
for when
the appellants were pointed out by the complainant at the
police station. In fact it would be more prudent to state that
it was challenged when it came to the arrest of the appellants.
She testified that the complainant is an Uber Taxi driver.
On
27 November at 15h00, he was telephoned to fetch a passenger at Mbaba
Street, Kwadwesi Township, Port Elizabeth. As he
was
approaching No. 6 Mbaba, he noticed a Suzuki motor vehicle with GP
registration plates (Suzuki motor vehicle) approaching.
It was
only the driver. It drove past him. He telephoned
Lukhanyo, who was the person who had summoned him. Lukhanyo
told him to drive to 44 Mbaba, which he did. On arrival, two
males and a female approached his car. One male got to
the
passenger seat and the other sat behind him with the female behind
the passenger. Before anything else, the male seated
behind him
cocked a firearm and ordered him to move to the passenger seat.
He complied. The person in the passenger
seat got round to the
driver’s seat. He took the complainant’s E6 Hisense
cellular phone and wallet from the
complainant’s pocket.
He drove down the street. He again saw the Suzuki motor
vehicle. They drove past
it as it was moving slowly. They
went to a shop where there were ATM machines. The driver
demanded his pin number which
he gave to him. He knew that he
had no money, so he gave him the correct pin number. The driver
came back and swore
at the complainant. He ordered him to get
out of the motor vehicle. They drove off in his motor vehicle
leaving him
behind. He went on foot up Nkwenkwezi Street on his
way to Kwadwesi Police Station. He spotted his motor vehicle at
the bus stop. He approached it. It was deserted but the
car keys were in the ignition. He drove to report at
Kwadwesi
Police Station. The police refused to open a case. He
left. Later at about 20h00, he went to report
the incident at
the Algoa Park Police Station. A docket was opened. He
went home thereafter.
[7]
On 28 November 2019, the complainant attended a meeting of Uber taxi
drivers which
was held at Kwazakhele. The meeting was prompted
by the robberies which were on the increase involving the Uber
taxis.
It became apparent at the meeting that in recent
robberies, a Suzuki motor vehicle with GP registration was always in
the various
scenes. After the meeting, the complainant decided
to check progress at the Algoa Park Police Station. Whilst he
was
still at the Community Service Centre (CSC), police came in
company of two male persons. He immediately recognised that
those
two males were the ones that robbed him the previous
afternoon. He immediately informed the police officers that
those were
the people that robbed him. He told the police that the
Suzuki motor vehicle with GP registration plate looked like the one
that
passed him twice on the day he was robbed. Warrant Officer
Williams testified that the two males pointed to by the complainant
were the appellants. According to her, they were arrested by
Kwazakhele police officers on information received after the
meeting
at Kwazakhele.
[8]
Warrant Officer Williams stated that both appellants had no previous
convictions.
However, the second appellant Mr Xego had a
pending case of robbery which involved an Uber robbery. She
testified that she
had completed her investigations. She
further testified that it transpired that although the complainant
had no money at
the time they had taken him to the ATM, later on
there was money that was transferred to his account. The people
who took
the complainant’s card withdrew a sum of R500.00 from
the Kwadwesi Siyabuya Complex from an ABSA ATM. Later that
afternoon,
the complainant’s card was swiped to purchase at
Mavela’s Tavern.
[9]
Warrant Officer Williams testified that the Suzuki motor vehicle was
hired by a person
called Mandisa on behalf of the second appellant
and his co-accused in the other pending case. Of relevance to
the matter
at hand is that the tracker of the Suzuki motor vehicle
puts it at Kwadwesi Siyabuya Complex at the time the R500.00 was
withdrawn
and further at Koyana Street at the time the complainant’s
bank card was used to pay at the Mavela Tavern. The Suzuki
motor vehicle was hired on 24 November 2019. She testified that
when the appellants were arrested, the second appellant was
the
driver of the Suzuki motor vehicle. She further testified that
since the arrest of the appellants, no Uber taxi robbery
occurred.
[10]
Under cross- examination Warrant Officer Williams stated that the
complainant did not give a
description of the appellants in his
statement. She stated that she obtained a statement from
Mandisa who had hired the Suzuki
motor vehicle and in it she
mentioned Suyabulala File and Lukhanyo as the people who she assisted
in hiring the Suzuki motor vehicle.
Mandisa knew them to be
friends. The Lukhanyo she referred to is the second applicant,
so she stated. Mandisa telephoned
the second appellant on 29
November 2019, and they could not answer. At the time a certain
daughter (it is not clear from
the record whose daughter) informed
Mandisa that the second appellant and File had been arrested.
It made sense to Warrant
Officer Williams that they did not answer
their phones because they had been taken by the police.
[11]
He was asked how the complainant got to identify the appellants at
the police station.
Warrant Officer Williams stated that the
appellants were arrested together at Gwadela Street. The first
appellant was the
driver of the Suzuki motor vehicle and the second
appellant was a passenger. She conceded, in the backdrop of her
evidence
that robbery of Ubers stopped after the arrest of the
appellants, that the first appellant has no pending cases involving
the robbery
of Uber drivers.
[12]
In respect of the second appellant, she stated that he has two
surnames. In the warning
statement, he used Xego and he also
uses Shaba.
[13]
The first appellant testified that he was 21 years old, unmarried,
with no children and is unemployed.
He resides at 2 Mahabeni
Street, Zwide Location, Port Elizabeth. The house belonged to
his mother and he is dependent on
her for support. He left
school in Grade 11 in 2017. He does not have previous
convictions nor pending criminal cases.
He was arrested on 29
November 2019 at his home. He did not avoid being arrested.
He did not possess a firearm nor
was he arrested in possession of
stolen property.
[14]
He stated that he saw the complainant at the charge office. He
was seeing him for the first
time on that day. He testified
that the complainant “pointed at them and said he did not know
them. When the
police heard the complainant, the police
officials then spoke alone on the side”. He did not hear
what they were saying.
At that juncture, they were at the
parking lot at Algoa Park Police Station. From there, they were
taken to Kwadwesi Police
Station. They appeared in court on 26
November 2019. He testified that he did not know who the State
witnesses were
and therefore would not interfere with them, he was
going to attend court and would abide by any conditions the court may
impose.
He could afford a sum of R 1000.00.
[15]
Under cross-examination he elected not to respond to almost all the
pertinent questions.
The following are but some of the issues
he did not want to response to:
·
He refused to answer whether he knew the
Suzuki motor vehicle with Gauteng registration that he was allegedly
found driving.
·
He did not want as to answer whether he was
the driver of the Suzuki motor vehicle at the time of his arrest.
·
He could not answer as to why the
complainant pointed at them and in the same breath say he did not
know them as he had testified
in his evidence in chief.
·
He was asked – “you said you
were at the parking lot when the complainant pointed you out”?
The answer was
“can I respond to that at trial”.
·
The follow up question was “Even
though you had responded to your attorney. Answer: That
is correct”.
[16]
The second appellant is 21 years, unmarried, unemployed and resides
at 15 Jisana Street in Zwide
Township, Port Elizabeth. It takes
him ten minutes to walk from his home to that of the first appellant
so he testified.
The house he lived at belonged to his
grandfather. He lives there with his mother, younger sister and
his grandfather.
He left school after matric. He is
unemployed. He survives by doing part-time jobs. He
worked in Mpumalanga for
three months before his arrest. He
testified that he did not have previous conviction. He has one
pending case of robbery.
His co-accused in that matter is
Siyabulela File. The latter was released on R2000.00 bail.
He has yet to apply for
bail. He is going to plead not guilty
when this matter goes on trial.
[17]
He was arrested on 26 November 2019. He was on his way to the
shop. He received an
SMS from his brother informing him that
police were looking for him. On his way home, he came across
the first appellant.
He proceeded with to the latter’s
house. They found the police present and were arrested.
They took them to Algoa
Park Police Station. The police did not
tell them why they were taking them to the police station. He
testified that
he did not see the complainant at the Algoa Park
Police Station parking lot. He testified that he was to plead
not guilty
to the charges. He stated that he only knew the
complainant as a witness but undertook not to interfere with State
witnesses,
he was going to abide by the bail conditions and any other
conditions the court may impose. He would be able to afford
R500.00
towards bail.
[18]
Under cross-examination the second appellant changed his evidence to
say that he met with the
complainant at the parking lot. When
quizzed on this, he said he thought he was being asked about the
other pending matter
where he is charged with Mr File. His
evidence must be viewed in that light he finished with his evidence
in chief on 14
February 2020. His cross-examination began on 25
February 2020.
[19]
In a nutshell he responded as follows regarding his change of heart
in respect of this aspect:
“
Well
Your Worship because he had mentioned that previous case or the other
matter. My
thought was I did not understand or was confused whether he was
talking about the
complainant in this matter or the other matter”. (
Sic
)
The second appellant did
not want to comment when it was put to him that he became aware after
the adjournment of the matter that
the first appellant had said he
saw the complainant at the parking lot. The second appellant
lied in this respect.
The questions posed by his legal
representative about the pending matter occurred early in his
evidence in chief. The aspect
of meeting with the complainant
flowed from him telling the court about when how and where he was
arrested in this matter.
He thereafter testified about how he
and the first appellant were taken to Algoa Park Police Station.
The question by his
legal representative went as follows:
“
Mr
Macgear: So, you were not informed why you
really going to Algoa Park? For what matter you going.
Accused
2: No, were never informed.
Mr
Macgear: At Algoa Park Police Station
the parking lot there is evidence from applicant number
one about
complainant. Did you see the complainant there
on
this
case
now
,
not
the other
case?
Accused
2: I did not see the
complainant
”
. (
Sic)
(Emphasis added).
[20]
Therefore, the second applicant could not have mistaken this and
ascribed it to the pending case
when the questioning categorically
referred him to this matter. He therefore lied in this regard.
He changed his evidence
after the matter had been adjourned as stated
above.
[21]
He was asked by the prosecutor whether the complainant said anything
when he pointed him out.
His response was that he did say
something but he would answer that during the trial. He
explained his reason to refuse to
answer as follows:
“
Your
Worship, it is not that I do not want to answer your question.
It is just that it is my right to answer and not answer
any
questions. So, I am choosing not to answer that question and
rather it at trial”. (
Sic
)
[22]
Based on the summary of the evidence above, the court
a
quo
reasoned that the appellant’s
failed to discharge the onus rested on them and refused to release
them on bail. As a
consequence thereof, the appellants appealed
to this court basically on similar grounds.
D.
Grounds of Appeal
:
[23]
The appellants submitted separate applications for leave to appeal.
I shall consolidate
the grounds of appeal as they mostly overlap.
The grounds span over three pages for each appellant. I shall
attempt
to summarise them as follows:
·
That the court
a
quo
failed in attaching due weight to
the
viva voce
evidence of the appellants.
·
No plausible evidence was presented by the
State to gainsay the evidence of the appellants.
·
That the complainants failed to identify
the appellants in that he did not provide the description of the
appellants and their identification
having regard to the
circumstances under which he pointed the appellants. His
evidence in that regard was not corroborated,
so it is argued.
·
The court
a
quo
erred in not finding out that the
State case was weak and non-existent; and
·
That the personal circumstances of the
appellants taken cumulatively constituted exceptional circumstances
especially the first
appellant who has no pending cases.
E.
Analysis
:
[24]
The appellant’s grounds of appeal are repetitive and overlap.
The court
a quo
in its judgment highlighted all the personal
circumstances of the appellants as they were presented by them in
their
viva voce
evidence. Furthermore, it dealt with the
substantive evidence presented by them in respect of the appellants’
undertaking
to abide by the bail conditions the court
a quo
might
set. The court
a quo
analysed the evidence of the
investigating officer and the appellants and concluded that the
appellants failed to discharge the
onus vested on them to establish
the exceptional circumstances justifying their release on bail.
The court
a quo
did so after it had analysed the legal
requirements for establish such circumstances. It further
balanced its finding with
the constitutional imperative that everyone
has a right to be released from detention if the interests of justice
so permit.
The court
a quo
referred to the provisions of
section 60(11)(a) of the CPA in evaluating the evidence before it.
Relying on the law, the
court
a quo
reasoned that the
exceptional circumstances must be understood not to mean unique
circumstances above, beyond and entirely different
from those
enumerated in section 60(4)(a) to (e) of the CPA.
[25]
However, the application of the principles relevant to bail was not
without fault on the part
of the court
a
quo.
For example its reasoning in
the following regard is flawed:
“
The
court knows without doubt that both applicants before court intend
pleading not guilty to the charge preferred
against them, but the court is in the dark, for example as to the
possible motive or the possible reason that the complainant
would had to falsely implicate both”.
[26]
In respect of the first ground Mr
Harker
argued that the State failed to establish that the appellants were
arrested together and were found in possession of the Suzuki
motor
vehicle. He submitted that the evidence of the investigating
officer and that of the first appellant conflict and therefore,
the
State should have produced fingerprints or photographs which would
establish that indeed the appellants were arrested in possession
of
the Suzuki motor vehicle. He submitted that there is lack of
detail from the State to establish this fact.
[27]
The criticism is unfounded and the submissions are not sound.
The test at this stage is
not beyond reasonable doubt. It is a
balance of probabilities. The probabilities in this matter
favour the State.
Throughout the evidence of Warrant Officer
Williams, the Suzuki motor vehicle featured prominently. From
the time the complainant
was robbed until the time he identified the
appellants at Algoa Park Police Station Warrant Officer Williams was
not shaken in
this regard under cross-examination. When the
issue of the Suzuki motor vehicle was canvassed by the State under
cross-examination
both appellants elected to remain silent by
electing not to answer questions relating to it. It did not
assist the appellants
to deny under cross-examination of Warrant
Officer Williams that they were not found in possession of the Suzuki
motor vehicle
and say nothing when their turn came. The
appellants cannot be heard to say the State did not establish this
issue.
The election by the appellants to remain silent did not
establish that Warrant Officer Williams lied neither did it assist
them
in establishing that they were not in possession of the Suzuki
motor vehicle as alleged.
[28]
Mr
Harker
argued
that the second ground of the appeal is important because no cash nor
property were found in the possession of the appellants
in spite of
the fact that both the car and the house were available to be
searched. No application “for a warrant for
search and
seizure in accordance with the CPA” was made, so he argued.
This to me, is stretching the matter too far.
I do not see the
relevance of the search and seizure application in the application
for bail especially in the circumstances where
the appellants
themselves did not want to respond to any questions relevant to the
Suzuki motor vehicle. Such information
would only be pertinent
at trial.
[29]
The appeal is also premised on the fact that the State has failed to
establish the identity of
the appellants as the people who robbed the
complainant. It is contended by Mr
Harker
that “(t)he appellants has raised the issue of identification
in the court proceedings together with his co-accused”
(
sic
).
He further submitted as follows in his heads of argument:
“
Based
on the reasoning as it flows where the identification was an issue of
dispute the court was obliged
to exercise
its inquisitorial powers”.
. . .
There
is no evidence before the court that section 48 of the CPA was
complied with which together with no description before
the
arrest, no crime scene, that the vehicle was not searched one has to
query how the court concluded that the arrest and
entry to the
premises were lawful or that the arrest was unlawful”. (
Sic
)
Section 48 of the CPA
deals with “breaking open premises for purpose of arrest”
and thus is irrelevant in the circumstances
of this matter.
[30]
In respect of the identification the submissions made with respect,
do not hold water.
The uncontroverted evidence is that the
complainant out of his own pointed out the appellants upon them
entering the Community
Service Centre. The appellants did not
gainsay that, instead they elected to keep quiet and would deal with
that at trial.
There was no need for the court
a
quo
to have gone beyond uncontroverted
evidence before it in this regard and I find no misdirection on its
part.
[31]
I do not agree with the appellants that the State case is weak.
The evidence reveals that
the complainant was able to point out at
the appellants on his own. There is no suggestion of a
coalition between him and
the police. The circumstantial
evidence also augments the findings by the court that there is a
strong
prima facie
case the appellants are likely to face. Running the risk of
repeating myself, there is no evidence on the part of the appellants
to gainsay the
prima facie
evidence presented by the State except for them to defer their
answers, even to non-committal issues, to the trial court.
[32]
It is not correct further that the court
a
quo
did not have regard to the personal
circumstances of the appellants. The court
a
quo
reasoned as following in this
regard:
“
When
all factors,
including the personal
circumstances of the applicants are weighed up
,
the court is of the view that both
applications have not proved on a balance of probabilities that
exceptional circumstances exist. That permit their release from
detention, and in the circumstances both applicants individually
as
well as cumulatively do not amount to exceptional, their
circumstances, and as such the court is refusing the bail application
in respect of both applicant 1 and applicant 2”. (
Sic
)
[33]
The court
a quo
did not just do lip services to the above. It evaluated the
strength of the State case, the evidence of the appellants and
their
election to exercise their right to remain silent. The court
below, dealt with the presumption of innocence and the
interests of
the appellants not to be arbitrarily detained pending trial.
[34]
It is common cause that the complainant, through the investigating
officer’s evidence,
did not place the appellants inside the
Suzuki motor vehicle. It was not necessary for the complainant
to have done so as
suggested by the appellants. Furthermore, it
is not the evidence of the State in opposing bail that the appellants
were seen
inside the Suzuki motor vehicle. The submission by
the appellants in this regard is misplaced. The relevance of
the
Suzuki motor vehicle is circumstantial as can be gleaned from the
summary of the evidence. I need not repeat the evidence
in this
regard.
[35]
This is an armed robbery matter hence it falls under Schedule 6.
It is trite that it carries
a lengthy term of imprisonment in the
event of a conviction. The court
a
quo
was correct in having regard to
that in exercising its discretion whether to release the appellants.
It is a factor that
is considered in instances where an applicant
faces serious charges.
[36]
I cannot find fault in the outcome the court
a
quo
arrived at in refusing bail.
The appeal in respect of both appellants should not succeed.
[37]
When reading the record of the proceedings before the court
a
quo,
I came across a disturbing conduct
meted out by Mr MacGear, who represented the appellants, to the
Presiding Officer. Because
I wanted to say something about the
disturbing conduct, I raised my concerns with both counsel who
appeared before me in this appeal.
Without saying much, they
inevitably agreed that the conduct displayed by Mr MacGear was
concerning. There was an unpleasant
conduct displayed by him
which I am of the view that it needs to be referred to the
professional body concerned with a view to
conduct further
investigations and appropriate action if necessary. I shall
extensively refer to the relevant portion of
the record so that there
should be no confusion in this regard.
“
Mr
MacGear:
You know where Kwazakhele Police Station is?
Warrant
Officer Williams:
Yes Your Worship.
Mr
MacGear:
Do you know where Algoa Park is?
Warrant
Officer Williams:
Yes Your Worship.
Mr
MacGear:
You saying you cannot give an estimation as to how far are the two
police stations from each other.
Warrant Officer
Williams:
No, Your Worship, I cannot.
Court:
Mr MacGear that is a bit of an unfair question. I would not
know either. But then you would be asking the witness to
speculate.
Mr
MacGear:
But you can speculate here. This is a bail application.
This is not a trial.
Court:
Yes, I understand. But it is not about speculate. You
cannot ask her and then you are going to hold to the investigating
officer to whatever distance she is speculating on. Which is
not allowed.
Mr
MacGear:
In a bail application hearsay evidence [in between]
Court:
It is not hearsay, this is speculation. There is a difference.
Mr
MacGear:
Give me time to reply.
Court:
But you are putting words in the court’s mouth.
Mr
MacGear:
You do not give me an opportunity to address
you
.
Court:
Because you are putting words in the court’s mouth Mr MacGear.
Mr
MacGear:
Can I address you? Yes or no?
Court:
Yes, you may address me now but you wait until the court has finished
speaking and then you can address me.
Mr
MacGear:
Okay, fine. Can I speak now?
Court:
Yes, you may.
Mr
MacGear:
Now in a bail application hearsay evidence is admissible. There
is no hard and fast rule. It is an inquiry where you
can lead
any evidence.
Court:
Yes. I understand that.
Mr
MacGear:
So, the witnesses are entitled also to speculate about how far [in
between]
Court:
No Mr MacGear.
Mr
MacGear:
She knows where the places is.
Court:
Mr MacGear I think you have it wrong. Witnesses are not
entitled. You are trying to put words in the witness mouth.
Mr
MacGear:
I put it her then. I put it to her.
Court:
You can put it to her. She can answer yes or no.
Mr
MacGear:
I know where Kwazakhele Police Station and I know where Algoa Park
Police Station is, about a few kilometres.
Warrant Officer
Williams:
Yes Your Worship, a few kilometres.
Mr
MacGear:
It is not going to take you very long to get from point A, that is
Kwazakhele Police Station to Algoa Park Police Station.
You
agree with me?
Warrant Officer
Williams:
Yes Your Worship. It depends where you
go in between.
Mr
MacGear:
It is going to take you less than half an hour. I travel is a
lot of times. I know where it is and I know where Algoa
Park
is. So, it takes you less than half an hour.
Warrant Officer
Williams:
Ja,
except if you stop by the garage and buy something to eat
or Your Worship, then it can take more time.
Mr
MacGear:
[Indistinct] I did not ask you to very sarcastic about.
Court:
Court will not allow swear words please. Language.
Mr
MacGear:
I am putting it to her.
Court:
No.
Mr
MacGear:
It is not [in between]
Court:
Mr MacGear do not talk when the court is talking. Relax
please. You said a word that is a swear word now.
Mr
MacGear:
What is it?
Court:
I do not want to repeat it.
Mr
MacGear:
What is the swear word?
Court:
It starts with a B?
Mr
MacGear:
No, no, I did not say any swear words. I said, talked about
sarcastic.
Court:
No, Mr MacGear I heard the exact word that you said. But, I do
not know where you are going with this. What –
you are
actually harassing the investigating now.
Mr
MacGear:
No, I am entitled to ask a question.
Court:
And she is entitled to answer you and she said if you stop at a shop
it will take you longer. She cannot speculate how long
the
complainant took to get there and if he did not make a stop.
Mr
MacGear:
I am entitled to put to her that she is sarcastic because I never
asked about stopping.
Court:
No, if you do not like her answer does not mean she is sarcastic if
it is not the answer that you want.
Mr
MacGear:
Are you going to give me opportunity to cross-examine this
witness?
Court:
Are you going to give the opportunity for the court to speak?
Mr
MacGear:
I am asking you a question.
Court:
And I am asking you a question Mr MacGear.
Mr
MacGear:
The court is entitled to speak but are you giving me opportunity to
cross-examine this witness?
Court:
I will give you an opportunity to cross-examine the witness but not
harass the witness, okay. And if the witness answers
and it is
not in your favour it does not mean that you can say she is
sarcastic.
Mr
MacGear:
You raising your voice now to me.
Court:
Because you are doing it to the court.
Mr
MacGear:
I notice you are raising your voice to me.
Court:
Yes, I am Mr MacGear.
Mr
MacGear:
If you raise your voice then I am going to ask that you recuse
yourself from this matter because you are totally [in between]
Court:
You are raising your voice to the court and you used a swear word.
So, if you do not like the answer that the investigating
officer is
giving you do not say she is being sarcastic, it is just not the
answer that you want. You may continue Mr MacGear.
Mr
MacGear:
I am entitled to put it and will put it to the witness
.
You are sarcastic. Nobody asked you about if you pull off and
you go to a shop, I will do something else. I
am asking if you
travel from the one station to the other station; that is what I am
asking you.
Court:
Do you have an answer?
Warrant Officer
Williams:
No Your Worship.
Court:
Move on Mr MacGear.
Mr
MacGear:
Now just tell me in the police statements of the arrest did they
arrest the applicants?”
[38]
Consequently, I make the following order.
1.
The appeal is dismissed.
__________________
M MAKAULA
Judge
of the High Court
Appearances
:
For
the Appellants
:
Adv BC Harker
Instructed
by
:
Wayne
MacGear, Aneesah Campbell Attorneys, Port Elizabeth
For
the State
:
Adv R Ahmed
Office
of the Deputy Director of Public Prosecutions, Port Elizabeth
Date
of hearing
:
19 June 2020
Date
judgment delivered
:
28 July 2020
And
Legal Practice
Council:
National Office
Midrand
Email:
info@lpc.org.za
Legal Practice
Council:
Eastern Cape Provincial Office
East
London
Email:
infoec@lpc.org.za