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2023
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[2023] ZAFSHC 327
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Tshivenga v S - Appeal (2248/2023) [2023] ZAFSHC 327 (17 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
2248/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
MPANDELI
CLIVE TSHIVENGA
Applicant
and
THE
STATE
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
11 AUGUSTUS 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
17 AUGUSTUS
2023
[1]
This is an application for leave to appeal against the judgement of
this Court dismissing
the applicant’s urgent application to be
released on bail on the basis of new facts that emerged since the
refusal of his
bail application in the Magistrate’s Court in
2019.
[2]
The application for leave is based on
the submission that there is a reasonable prospect that
another Court
would come to a different conclusion than the one reached by this
Court in the bail application on new facts. Before
the question of
reasonable prospects can be considered, it must be established
whether the applicant has shown new facts before
this Court that
would constitute exceptional circumstances allowing his release on
bail. This is so, because the applicant and
his co-accused are
currently standing trial on Schedule 6 offences, and in terms of
section 60(11)(a)
of the
Criminal Procedure Act 51 of 1977
, an
applicant for bail on new facts should still prove exceptional
circumstances, which in the interest of justice permits his
release
on bail.
[3]
The new facts alleged by the applicant are two-fold. Firstly, he
submits that the
respondent has not presented any real evidence
against him before the close of the state’s case. He submits
that the only
evidence against him consists of the evidence relating
to cell phone records and video footage showing him in the company of
the
hitman at the casino on the night prior to the killing of the
deceased. That evidence did not establish anything against him, and
therefore the case against him is weak, he contends.
[4]
Secondly, the applicant points out that the Pretoria Moot case has
been withdrawn
against him, which fact did not exist at the time of
his initial bail application.
[5]
As for the first new fact alleged, this Court pointed out in its
judgement that application
was made for the discharge of the
applicant after the close of the state case, but that the presiding
Judge had dismissed that
application, stating that he is of the view
that the applicant has a case to answer. In this respect this court
found that it was
not in a position to find that there is no evidence
against the applicant and that it has to rely on the judgement of the
trial
judge, who should know best in the circumstances.
[6]
To put it differently, the alleged new fact of a weak case must be
considered together
with the new fact of the dismissal of the
application for a discharge at the end of the state case. This new
fact alleged by the
applicant, therefore stands in the shadow of
uncertainty, and it cannot as such constitute an exceptional
circumstance. In my view,
there is no prospect that another court
would find differently.
[7]
As for the second new fact alleged, this court has referred in its
judgement to the
opposing affidavit filed by the state, indicating
that the Pretoria Moot case against the applicant, as well as other
cases, will
be revisited, and in all probability, he will be charged
on all those pending cases. The present status of the Pretoria Moot
case
therefore cannot be said to be a new fact. Even if it could
qualify as such, then it could certainly not qualify as an
exceptional
circumstance for the granting of bail. In the premises, I
make the following order:
1. The
application for leave to appeal is dismissed.
P. J. LOUBSER, J
For
the applicant:
Adv.
M. A. Madira
Instructed
by:
Abrams
Madira Attorneys, Pretoria
c/o
Motaung Attorneys, Bloemfontein
For
the respondent:
Adv.
J. De Nysschen
Instructed
by:
Office
of the Director of Public Prosecutions
Bloemfontein
/roosthuizen