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[2012] ZASCA 79
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Mooi v S (162/12) [2012] ZASCA 79 (30 May 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 162/12
In
the matter between:
Siyabonga
Mooi
….................................................................................................
Appellant
and
The
State
…........................................................................................................
Respondent
Neutral citation:
Mooi v The State
(162/12)
[2012] ZASCA 79
(30 May 2012)
Coram:
NAVSA, VAN
HEERDEN AND SNYDERS JJA
Heard:
16 May
2012
Delivered: 30 May 2012
Summary:
Bail –
Criminal Procedure Act 51 of 1977
s 60(11)
(a)
–
delay by State in concluding its case taken together with deduced
weakness of State’s case constituting exceptional
circumstances
which in the interests of justice permit the release of accused.
ORDER
On appeal from:
Western Cape High Court, Cape Town (Hlophe JP
sitting as court of appeal):
1
The
appeal is upheld.
2
The
order of the court below is set aside and substituted as follows:
‘
a The appeal is upheld.
b The order by the Magistrate is set
aside and substituted as follows:
“
The applicant is released on
bail in the amount of R5 000 (five thousand rand) subject to the
following conditions:
i That the applicant report at the
Lingelethu West Police Station every Monday, Wednesday and Friday
between 06h00 and 08h00;
ii Should the applicant change his
address he must inform the investigating officer, Detective Constable
S Chaphiso accordingly
and supply the new address;
iii Attend his trial on each date the
matter is postponed to and remain in attendance until excused by the
court.”’
JUDGMENT
SNYDERS JA (Navsa and Van
Heerden JJA concurring)
[1] This is an appeal
against the dismissal of a bail appeal by the Western Cape High
Court, Cape Town (Hlophe JP sitting as court
of appeal).
1
At the conclusion of the
hearing of the matter an order was made releasing the appellant with
an indication that the reasons for
the order were to follow. These
are the reasons.
[2] The appellant is
standing trial in the Regional Court for the Regional Division of the
Cape,
held
at Wynberg,
on
several counts of robbery with aggravating circumstances, attempted
robbery with aggravating circumstances, attempted murder
and the
unlawful possession of a firearm and ammunition. All the charges
arise from an incident on 24 December 2008,
during
which a service station in Muizenberg was robbed. The appellant was
arrested on that day and has been in custody ever since.
The trial
commenced on 12 November 2009 and the State has not yet concluded its
evidence. During March 2011 the appellant applied
to be released on
bail. He brought the application in the Regional Court, Wynberg (not
the trial court). Bail was refused and he
appealed the refusal of
bail to the Western Cape High Court, Cape Town. On 19 September 2011
his appeal was dismissed.
[3] The parties were in
agreement that the bail application resorted under s 60(11)
(a)
of the Criminal Procedure
Act 51 of 1977 (the CPA) and therefore the appellant has to adduce
evidence that satisfies the court that
‘exceptional
circumstances exists which in the interests of justice permit his
release’.
2
In terms of s 65(4) the
appellant needs to persuade this Court that the decision to refuse
bail was wrong.
3
[4] Section 60(4) lists
several grounds which, if shown to exist, would have the effect that
the interests of justice would not
permit the release of an accused.
Those are:
‘
(a)
Where
there is the likelihood that the accused, if he or she were released
on bail, will endanger the safety of the public or any
particular
person or will commit a Schedule 1 offence; or
(b)
Where
there is the likelihood that the accused, if he or she were released
on bail, will attempt to evade his or her trial; or
(c)
Where
there is the likelihood that the accused, if he or she were released
on bail, will attempt to influence or intimidate witnesses
or to
conceal or destroy evidence; or
(d)
Where
there is the likelihood that the accused, if he or she were released
on bail, will undermine or jeopardize the objectives
or the proper
functioning of the criminal justice system, including the bail
system;
(e)
Where
in exceptional circumstances there is the likelihood that the release
of the accused will disturb the public order or undermine
the public
peace or security.’
[5] The magistrate
refused bail because ‘there is evidence linking the accused to
the offence’ and therefore that ‘it
will not be in the
interests of justice to grant bail’. In this Court it was
accepted that in the circumstances the determining
factor whether to
grant or refuse bail is the strength of the State’s case
against the appellant. Section 60(6) lists several
factors which a
court may take into account, amongst other relevant things, in order
to consider whether the ground stated in ss
(4)(b), namely the
likelihood of an accused evading his trial, has been established.
Those include the emotional and occupational
ties of the accused; his
assets and where they are situated; his means of travel and available
travel documents; whether he can
afford to forfeit the amount of
money paid in relation to bail; prospects of extradition; the nature
and gravity of the offences
charged with; the strength of the case
against him; the nature and gravity of the likely punishment in the
event of the accused
being convicted; the binding effect of possible
bail conditions and the ease with which they could be breached, and
any other factor
which in the opinion of the court should be taken
into account.
[6] The appellant is 32
years old, single and the father of two minor children, aged 11 and 6
respectively. The children reside
with and are supported by their
respective mothers, one in the Northern Cape and the other one in the
Western Cape. The appellant
has been in custody for a period of three
years and almost five months, since the day of the incident. He has
no previous convictions
and no other pending criminal cases. Before
his arrest he used to work as a bouncer at a tavern and would be able
to take up such
a position again should he be released. Since 1992 he
has been living in Eersterivier with his mother in her house, which
house
he stands to inherit upon her death as he is her only son. The
appellant has previously faced criminal charges. He was charged with
robbery with aggravating circumstances, murder and the unlawful
possession of firearms in the high court. He was granted bail in
that
matter, apparently after the investigating officer had an accident
and was incapacitated. He was ultimately acquitted. Whilst
he was on
bail he was arrested in the current matter. Although the details are
scant he was also previously charged in a regional
court in the
Eastern Cape, granted bail and those proceedings were withdrawn.
[7] The garage where the
incident occurred is equipped with closed circuit television cameras
(CCTV), specifically for security
purposes. During the robbery the
system was functioning and the State had been furnished with the
recording of the events. The
State has that recording available for
purposes of the criminal trial and has still photographs printed from
it. According to the
investigating officer, who testified for the
State in opposing the bail application, the events recorded on the
CCTV recording
accord with the accounts of witnesses and incriminate
the appellant. Although the recording was not shown to the court, nor
to
the appellant or his legal representatives, the investigating
officer testified that it shows that, prior to the robbery, a white
Volkswagen Polo motor vehicle arrived at the garage and caused an
obstruction. One of the appellant’s co-accused, number
4,
alighted. He was asked to move the vehicle. Later, the Polo returned
to a position close to the garage and three men disembarked,
allegedly the appellant, his co-accused 2 and 4. The Polo then
departed. Accused 4 entered the shop at the garage and made a
purchase.
The appellant, armed with a firearm, entered and pointed
the firearm at the owner and all the customers. Whilst inside,
accused
4 forced all the attendants and patrons on the forecourt into
a cubicle and they were searched by accused 2. One of the accused
then made a phonecall, presumably to the driver of a get-away
vehicle, but received no response. They attempted to escape in a
Ford
Fiesta, without success, and then threatened the driver of a Toyota
Hilux with a firearm, took control and possession of his
vehicle and
drove off. Members of the South African Police Service were quick to
arrive on the scene and were pointed in the direction
of the Hilux.
They went in pursuit. Both the Hilux and the police vehicle came to a
stop and the occupants started shooting at
each other. The Polo, that
was at the garage initially, returned and stopped between the police
and the suspected robbers. The
driver disembarked, walked towards the
police who stopped shooting, and he complained to them that he had
been hijacked. The suspected
robbers got into the Polo and sped away.
It ultimately crashed against a wall and the occupants ran away.
Bystanders pointed the
police to where the occupants were allegedly
hiding and the police arrested the appellant and accused 2 as a
result of the reports
from the bystanders. The police found a firearm
buried at the house where accused 2 was arrested and this firearm was
balistically
linked to the scene of the shootout between members of
the police and the robbers. A fingerprint of the appellant was found
in
the Polo, which he identified as a vehicle of a friend.
[8] Despite the
confidence of the State in its evidence against the appellant it was
evident that the investigating officer over-stated
that case during
the course of his evidence. Cross examination revealed that the
fingerprint of the appellant was found on the
Polo motor vehicle and
not in it, that there were some issues around the reliability of the
identification of the appellant during
an identification parade and
in court, that the photographs made from the CCTV recording (these
are not part of the record of the
proceedings before us) did not show
the facial features of the robbers and revealed a dispute about
whether the person that the
State alleged was the appellant was
wearing a multi-coloured striped T-shirt or a black and white striped
jersey, similar to a
rugby jersey. It is necessary to record that the
owner of the Polo was allegedly known to the appellant and that was
the reason
for the possible presence of the fingerprint, which the
appellant has not yet acknowledged was his.
[9] Despite the
investigating officer stating that the State has a strong case
against the appellant, his evidence did not reveal
this. The State
has not managed, in a period of two and a half years, to complete the
evidence of their alleged strong case in
the trial court. The State
did not baulk at the accusation that it caused most, if not all, the
delays in the matter. At the time
that the magistrate heard the bail
application, it was envisaged that the State was going to close its
case after a further three
day hearing during May 2012. That date has
now come and gone and this Court was informed that the State did not
proceed with its
case against the appellant, but postponed it again
until the end of May 2012. Counsel appearing for the State before us,
who is
not counsel appearing at the trial of the matter, was in the
unenviable position that she was unable to give the assurance that
the State’s case is going to proceed and be completed during
the postponed hearing at the end of the month. She was also
unable to
indicate, despite the fact that she enquired about it, what the
evidence was that the State still intended to lead.
[10] According to the
investigating officer’s evidence, the source of all of the
evidence against the appellant became known
on the day of the
incident and therefore there could not have been any difficulty
gathering it. No difficulty was pointed to on
behalf of the State.
The inordinate delay in presenting this asserted strong case on
behalf of the State is unexplained. In the
circumstances the delay
since the trial started in November 2009, is significant and calls
for an explanation that has not been
forthcoming. On the contrary,
when asked for one during his evidence, the investigating officer
displayed an arrogant and obstructive
attitude.
[11] The finding
contended for on behalf of the appellant that there is no case at all
against him, is overly optimistic. The evidence
on behalf of the
State, at the very least, discloses a link between the appellant, the
Polo at the scene of the shoot-out between
the police and the
robbers, and the place where the appellant was arrested. However, the
delay in concluding its case, the lack
of explanation for the delay
and the absence of evidence of the alleged strong case, undermines
the assertion by the State and
the finding by the magistrate that
there is such a substantial case against the appellant that it would
serve as motivation for
him not to stand his trial were he to be
released on bail.
[12] The appellant has
faced previous prosecutions, in the high court for a variety of
charges, including murder, and also in a
regional court in the
Eastern Cape, for robbery. In each instance he was granted bail and
he stood trial until its conclusion.
These facts reveal an
inclination contrary to reluctance to stand trial. In the
circumstances the apparent weakness of the State’s
case, taken
together with a history of not avoiding his trial, the court below
was wrong in not concluding that the appellant has
succeeded in
showing that exceptional circumstances are present that, in the
interests of justice, permit his release.
[12] The appellant was
released on bail on the following terms that were agreed between the
parties. The following order was made:
1
The
appeal is upheld.
2
The
order of the court below is set aside and substituted as follows:
‘
a The appeal is upheld.
b The order by the Magistrate is set
aside and substituted as follows:
“
The applicant is released on
bail in the amount of R5 000 (five thousand rand) subject to the
following conditions:
i That the applicant report at the
Lingelethu West Police Station every Monday, Wednesday and Friday
between 06h00 and 08h00;
ii Should the applicant change his
address he must inform the investigating officer, Detective Constable
S Chaphiso accordingly
and supply the new address;
iii Attend his trial on each date the
matter is postponed to and remain in attendance until excused by the
court.”
____________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For
the Appellant: J van der Berg
Instructed
by:
Bern
Rautenbach Attorneys; Brackenfell
Lengau
Attorneys, Bloemfontein
For the Respondent: S M
Galloway
Instructed
by:
The
Director of Public Prosecutions, Cape Town
The
Director of Public Prosecutions, Bloemfontein
1
This
matter commenced as an application for leave to appeal referred for
the hearing of argument in terms of s 21(3)
(c)
of the Supreme
Court Act 59 of 1959. At the hearing leave to appeal was granted and
the matter proceeded as an appeal.
2
Section
60(11)
(a)
of the CPA:
‘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;’
3
Section
65(4): ‘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 should have given.’