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[2023] ZAFSHC 152
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Litsoane v S (A 42/2023) [2023] ZAFSHC 152 (26 April 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
no
.
A 42/2023
In
the appeal of:
TEBOGO
VICTOR LITSOANE
and
THE STATE
Appellant
Respondent
CORAM:
VAN RHYN J
HEARD
ON:
14 APRIL 2023
DELIVERED:
26 APRIL 2023
[1]
This is an appeal by the
appellant, Tebogo Victor Litsoane, against the refusal
by
Magistrate Ms Alexander, presiding in the District Magistrate’s
Court held at Botshabelo on 12 May 2022, to admit the appellant
to
bail.
[2]
The appellant is charged with the following offences, namely:
(2.1)
robbery with aggravating circumstances;
(2.2)
defeating the ends of justice; and
(2.3)
possession of ammunition.
[3]
Bail and bail appeals are by their very nature urgent. In
S
v Banger
,
[1]
the Supreme Court of Appeal held that an accused person should not be
deprived of his or her constitutional rights to freedom and
to
freedom of movement for longer than is reasonably necessary.
[4]
It is common cause that the bail application of the appellant and his
co- accused
in the district court was heard in accordance with the
provisions of Schedule 6 of the Criminal Procedure Act 51 of 1977
(the “CPA”).
The Bail application was therefore heard
with the understanding that the onus was on the appellant to show
that exceptional circumstances
exist which, in the interests of
justice, permit his release on bail.
[2]
In discharging this onus, the appellant adduced evidence under oath.
The following is a summary of his testimony on 12 May 2022:
4.1
appellant was 42 years old at the time of his bail application;
4.2
he has been a resident of 2[…], L section Botshabelo for the
past 20 years;
4.3
he is not residing with his spouse. He has a son aged 14 years who is
residing with his mother.
Appellant is not sure whether the minor son
was in grade 6 or 7 at the time of the bail application;
4.4
the appellant was residing with his mother, 68 years of age, who
suffers from a mental illness;
4.5
appellant was employed by Senforce Armed Response, a security company
for a period of 5 years
prior to his arrest. He risks losing his
employment if he is remanded in custody pending the trail;
4.6
appellant earned a salary of R7 500.00 per month and after
deductions, he received an amount
of R3 800.00. He is
maintaining his mother as well as his son;
4.7
he does not have a passport.
4.8
appellant has no previous convictions and no other pending criminal
cases;
[5]
The application for bail was opposed by the State,
inter alia
,
on the grounds that 9 live rounds of ammunition were found at the
appellant’s residence subsequent to a search conducted
by the
members of the South African Police Service at the time of his
arrest. During cross examination it was discovered
that
the appellant’s mother had not been diagnosed by a medical
practitioner regarding the so called mental problems but
by the
appellant himself. His mother suffers from high blood pressure and he
employed the next door neighbour to look after his
mother when he is
at work, which includes working shifts at night.
[6]
Respondent contends that the evidence
presented by the Investigating Officer, Sergeant I L Mara,
is
relevant to the adjudication of this appeal. His testimony can be
summarised as follows: The appellant and three other accused
are
implicated in a robbery that occurred at a house at Bothsabelo on 19
April 2022. The appellant is linked to the crime in that
a vehicle
belonging to Senforce Armed Response was used during the robbery.
Appellant is furthermore linked by way of cellular
phone calls
between himself and accused no 2. Appellant had reported that he had
been hijacked shortly prior to the crime being
committed, but
subsequently made an attempt to withdraw his statement in this
regard. The court
a quo
found that the State had a strong case
against all the accused.
[7]
The appellant noted an appeal against the refusal of bail and the
grounds for such
appeal are recorded in detail in the notice of
appeal. Mr Jeje, who appeared on behalf of the appellant, argued that
the court
a quo
unfairly disregarded the appellant’s
secure employment with a security company and his obligations towards
his minor son
and his mother and did not have due regard to the fact
that the appellant’s continued detention will have an adverse
effect
on his mother, his son and his employment.
[8]
On behalf of the appellant it is submitted that the court
a quo
misdirected itself in failing to find that the appellant’s
personal circumstances and the fact that the case against the
accused
is based upon circumstantial evidence ought to have been regarded as
a combination of ordinary circumstances referred to
in section
60(4)(a) to (e) of the CPA and as such qualify as exceptional
circumstances warranting his release on bail.
[9]
An appeal against the refusal of bail is
governed by section 65(4) of the CPA which
provides that:
"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".
[10]
The approach of a court hearing a bail appeal is
trite. In
S
v Barber
[3]
it was held 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 for bail. 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 his
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 exercised
that discretion wrongly ... "
[11]
It is unnecessary, for purposes of this judgment, to set out all the
considerations listed by the Legislature
that should be taken into
account when assessing bail applications. Suffice to say that, while
the magistrate was required to consider
them all, she retained a
discretion to decide the weight to be given each.
[12]
Mr Harrington, appearing on behalf of the respondent referred to
S
v Porthen and Others
[4]
where Binns-Ward AJ held as follows:
“
On
the issue on the existence of ‘extraordinary circumstances’
within the meaning of s 60(11)(a) of the CPA, there is
a”
formal
onus
’
of proof on the applicant for bail. The ordinary equitable test of
the interests of justice determined according to the
exemplary list
of considerations set out in s 60(4)–(9) of the Act has to be
applied differently. See
S
v Dlamini (supra
in para [61]. In my view, a court making the determination whether or
not that
onus
of proof has been discharged exercises a discretionary power in the
wide sense of discretion. The appellate Court is, in terms
of s 65(4)
of the CPA, enjoined to interfere with the lower court’s
decision of a bail application if it is satisfied that
the lower
court’s
decision
was wrong”
[5]
[13]
During his testimony, the appellant denied all the charges against
him and explained that he intended
to hand in the 9 live rounds of
ammunition which was found when the members of South African Police
Services searched his residence.
According to him, he discovered the
ammunition when he was doing patrol duties shortly prior to his
arrest. He intended to
write a report and hand in the
ammunition with his report but he was arrested before he was able to
submit the report. The appellant
testified that he was issued with a
fire arm and he was the driver of a vehicle belonging to this
employer, being Senforce Armed
Response when he was on duty. He was
not in possession of the fire arm when he was arrested at his home
and was obliged to hand
in the fire arm issued to him when he was not
on duty.
[14]
I agree with the finding by the court
a
quo,
that the State’s case against the 4 accused, including the
appellant, appears to be
prima
facie
,
reasonable strong. In
S
v Botha and Another
[6]
the court held that proof by the appellant that he will probably be
acquitted can serve as ‘exceptional circumstances’.
It
can hardly be argued that, given the gravity of the State’s
case against the appellant as presented by the Investigating
Officer,
this factor, even though the case against the appellant is based upon
circumstantial evidence, can serve as “exceptional
circumstances” within the meaning of section 60 (11) of the
CPA. To my mind, a major consideration in all cases relating
to
bail applications, is the likelihood of an accused not facing the
trial or preventing the course of justice. Mr Harrington argued
that
the fact that the appellant was able to utilise the monies received
from his provident fund to provide financial instruction
to his
attorney, is a clear indication that he has lost his employment since
his arrest.
[15]
The Investigating Officer, set out all the evidence relevant and
available to the State during the
bail application. The evidence
recounts how the robbery was committed as well as the evidence which
links the appellant with accused
4, the role of the appellant in the
planning of the crime which amounts to a visit by the appellant at
the crime scene prior to
the robbery. A motor vehicle identified as
the property of Senforce Armed Response was used to commit the
robbery. The complainant
in the case also previously worked with the
appellant and the complainant’s testimony will most probably
also link the appellant
with the robbery.
[16]
Financial harm is an inevitable consequence of the arrest and
subsequent incarceration of any employed
person. No information has
been placed before this court or the court
a quo
to make a
finding that the appellant’s mother and his minor son will not
be cared for or has been left destitute since the
appellant’s
arrest.
[17]
The court
a quo
was of the view that the appellant
failed to show that exceptional circumstances exist which in the
interests of justice permit
his release on bail. Bail was accordingly
refused.
[18]
The likelihood that, in the event of the appellant being released on
bail, he would endanger the safety
of a possible witness or any
particular person or that he poses a flight risk, is more than a just
a perception. I therefore cannot
find any misdirection on the part of
the Magistrate in finding that there were no exceptional
circumstances, which in the interests
of justice permitted the
appellant’s release on bail.
[19]
In the result the following order is made:
The
appeal is dismissed.
______________________
VAN
RHYN, J
On
behalf of the Appellant:
MR A
J JEJE
Instructed
by:
MADUBA
ATTORNEYS
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
W J HARRINGTO
Instructed
by:
DIRECTOR
PUBLIC PROSECUTIONS
BLOEMFONTEIN
[1]
2016 (1) SACR 115
(SCA) para 14.
[2]
Section 60(11)(a)
of the
Criminal Procedure Act.
[3
]
1979
(4) SA 218
(D) at
220
E-H.
[4]
2004 (2) SACR 242 (CPD).
[5]
Porthen (supra) at [14].
[6]
2002(1) SACR 222 (HHA).